The thoughts below aren’t systematic or arranged in order of importance. They’re just what has come to the mind of a lawyer whose practice doesn’t include rarified Constitutional issues. Take them for what they’re worth.
1. Most non-lawyers have the wrong idea about what the Supreme Court does. Only a tiny percentage of the cases that come before it raise far-reaching questions, much less the basics of the Constitution. Most of the Court’s work consists of the interpretation of statutes, and most of those statutes are unknown, or barely known, to the general public. Dobbs v. Jackson Women’s Health (this term’s high profile abortion case) is an outlier. More typical are cases like Hughes v. Northwestern University, which considered pleading standards in actions brought under section 502(a)(3) of the Employee Retirement Income Security Act of 1974 (very important to the work that I do but unlikely to affect you).
Given the nature of the Court’s actual work, the most valuable Justices, most of the time, are ones who can read statutes, regulations and other legal documents – often written in a dialect that barely resembles English and studded with ambiguous phrases and obscure cross-references – with a clear eye and an unmuddled head and, above all, without yielding to the impulse to “improve” the work of legislators by rewriting laws to better fit the individual Justices’ notions of good policy. Justice Gorsuch is a sound originalist when he interprets the Constitution, but his opinion in Bostock v. Clayton County revealed a tendency to treat statutory texts as palimpsests whose original meaning can be overwritten to suit judges’ ideas of what Congress would have said if only it had been as enlightened as ourselves. There are, as it happens, far more Bostocks than Dobbses on the Court’s docket, and their cumulative impact is probably greater.
2. How Joe Biden views the Supreme Court was made abundantly clear when, in return for an endorsement for his Presidential campaign, he pledged to limit his search for his first Court appointment to “black women”. That was the price of obtaining the backing of Rep. James Clyburn in the South Carolina primary. Biden paid it as readily as if Rep. Clyburn had asked for a new Post Office in Bamberg.
3. The general public’s reaction to turning the Court into another realm of identity politics hasn’t been very favorable. According to an ABC News/Ipsos poll:
During the spring 2020 presidential primaries, days before his set of big wins on Super Tuesday, Biden pledged to nominate the first Black woman to the Supreme Court, if elected. Now, with the chance to do so, just over three-quarters of Americans (76%) [including, the story later notes, 54% of Democrats] want Biden to consider “all possible nominees.” Just 23% want him to automatically follow through on his history-making commitment that the White House seems keen on seeing through. At a ceremony honoring the retiring justice, Biden told reporters he is able to honor his promise without compromising on quality.
A newly hired law school lecturer had the nerve to point out that Biden’s arbitrary limitation of the candidate pool is highly likely to yield a nominee who isn’t at the top end of the range of quality. For uttering that indubitable truth, he has been suspended from his position. Georgetown Law School is pondering whether to fire him, the outcome demanded by a student sit-in. I can’t resist plucking out this slightly irrelevant gem from a report on the student action (emphasis added):
At another juncture, a student demanded that the dean cover for the classes that the activists had missed as a result of the sit-in, suggesting that the move should be part of a “reparations” package for black students. She followed up by insisting that students be given a designated place on campus to cry. “Is there an office they can go to?” she asked. “I don’t know what it would look like, but if they want to cry, if they need to break down, where can they go? Because we’re at a point where students are coming out of class to go to the bathroom to cry.”
“And this is not in the future,” she added. “This is today.”
The administrators took the law student’s query seriously. “It is really, really hard to walk out of class or a meeting in tears, and you should always have a place on campus where you can go,” Dean Bailin told her. “And if you’re finding that you’re not getting the person that you want to talk to or not getting the space that you need, reach out to me anytime – anytime – and we will find you space.”
It occurs to me that President Biden could score a jackpot of Woke Equity Points by appointing a biologically white male who identifies as a black woman.
4. What about quality? The women whom the Great Mentioner has suggested as potential Biden appointees aren’t nobodies. The three alleged front runners are a California Supreme Court Justice and two federal District Court judges. One of them, by what is doubtless a coincidence, is from Rep. Clyburn’s home state. The estimable Paul Mirengoff thinks that she is the best of the lot. She is certainly, for the reasons he outlines, the only one who would bring diversity of background, as opposed to diversity of epidermis cum anatomy, to the Supreme Court. Here, for example, is a slice of the vita of one of the other contenders:
A native of southern California, Kruger is the daughter of two physicians. Her mother hails from Jamaica, while her late father was the son of Jewish immigrants from eastern Europe. Kruger attended the prestigious Polytechnic School, a private prep school in Pasadena, California, whose other alumni include Julia Child and James Ho, a judge on the U.S. Court of Appeals for the 5th Circuit who was on former President Donald Trump’s short list to fill a Supreme Court vacancy.
After that she went to Harvard, Yale Law School, judicial clerkships, a white shoe law firm, the solicitor general’s office. And people thought Brett Kavanaugh came from the ranks of privilege?
What’s wrong with making race and sex gateways to consideration for appointments? In the course of an in-depth discussion (very much worth your attention) of what it means to be qualified for the Supreme Court, Dan McLaughlin summarizes the flaws in Biden’s approach:
During the 2020 primaries, he promised that his first nominee to the Court would be a black woman. That is bad in three ways. One, of course, blatant discrimination on the basis of race or gender (or here, both) is a bad thing in itself. Two, excluding the overwhelming majority of potential job applicants is a very bad way to ensure that your job search gets the most qualified candidate, or particularly close to the most qualified candidate. Three, publicly advertising that you are excluding so many candidates solely on the basis of race and gender casts a cloud over the nominee: It causes people to doubt whether they were really chosen because they were (in all the ways discussed above) picked for being highly qualified for the job.
I would add that Biden’s “Jim Crow 2.0” standard (as one might reasonably call it) reinforces the mentality that fits people into “identities”, treats those identities as substantive qualifications (or disqualifications) and stigmatizes those who fail to act in the way that their identities demand (that is, members of favored identities who don’t applaud the system of discrimination and those of the disfavored who criticize it). As Thomas Sowell has chronicled in Affirmative Action Around the World, adopting discriminatory policies today aggravates rather than atones for discrimination that occurred yesterday. It can even, as in Sri Lanka, lead to civil war.
5. Assuming that the President’s selection isn’t an ideologue or idiot, how should the Senate’s Republican moiety react? So far as I can see, asking nominees about their judicial philosophy does no good, because all of them, even conservatives, fall back on soothing clichés and decline to answer any difficult questions, partly because they know that they’ll be pilloried if they do and partly because addressing a complex legal issue adequately in a few sentences is impossible.
Some conservatives think that failure to attack a Biden nominee ferociously in the manner that Democrats attacked Justices Gorsuch, Kavanaugh and Barrett (not to mention Robert Bork and Clarence Thomas) would amount to “unilateral disarmament”. In a sense it would, but the weapon has been so overused that it has lost its potency. Throwing away a blunt sword isn’t disarming. The long-term interests of the country and, indeed, the short-term interests of the GOP would be best served, I believe, by a thorough, dignified set of hearings. Confirmation of the nominee, whoever she is, is all but inevitable, and there’s no reason to think that, were this one to fail, the next would be an improvement. That Justice Breyer would be succeeded by a progressive became a nearly sure thing when Donald Trump lost the Presidential election and then campaigned de facto, albeit not intentionally, for the Democratic candidates in the Georgia Senate runoffs.
6. The prologue to Justice Breyer’s retirement tells us something about a large segment of the progressive Left:
Justice Stephen Breyer’s retirement announcement came after a year-long campaign by far-left dark-money groups to intimidate the liberal bloc’s senior justice into vacating his Supreme Court seat. The goal was to ensure that President Biden would replace him with an even more liberal justice who would be expected to hold that seat for decades.
It was never a particularly subtle effort. Demand Justice, the far-left group dedicated to judicial nominations in the vast Arabella Advisors dark-money network, even launched a “Breyer Retire” campaign, complete with an online petition telling the justice to step down immediately and a billboard truck driving around the Supreme Court building to convey that message. And the day after the announcement, the same truck took a victory lap, thanking Breyer.
Just imagine if a comparable effort were ever undertaken by conservatives to pressure an elderly conservative justice to step down during a Republican administration. Of course, that has never happened, despite many years of disappointing decisions handed down from Republican-appointed members of the nation’s highest court.
Those of us unfortunate enough to receive streams of emails from progressive grifters can’t help being struck by their incessant resort to the language of force, their insistence on obeying the “commands” of Joe Biden, Barack Obama et al. and their promises to “humiliate” their adversaries (provided that you send “Every Dollar You Can”). I’d like to think that most progressives find that mode of discourse as distasteful as I do, yet it must attract money or it wouldn’t continue. Out there somewhere is cult of violence that has enough adherents to turn a profit for its leaders.
7. Finally, let me call attention to the kind of conduct that disgraces a Supreme Court Justice. In the course of the oral argument in Dobbs v. Jackson Women’ Health, Justice Sotomayor put aside legal analysis to issue a naked threat to her fellow Justices:
Now the sponsors of this bill, the House bill in Mississippi, said we are doing it because we have new justices. The newest ban that Mississippi put in place, the six-week ban, the Senate sponsor said we’re doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?
In plain English, if you don’t accept my interpretation of the Constitution, your reasoning can’t be anything but political, and the Supreme Court should forfeit its legitimacy in the public mind. One expects that sort of rhetoric from figures like Chuck Schumer, who in 2020 declared, “I want to tell you, Gorsuch! I want to tell you, Kavanaugh! You have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.” It’s disheartening when one of the threatened Justices’ colleagues says essentially the same thing.
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