With apologies to the Doors and Jim Morrison
When I was back there in law school,
there was a person there who put forth the proposition
that you can petition the Supreme Court without despair
The disingenuous and cynical opposition to President Biden announcing he would select a Black woman as his nominee to serve on the Supreme Court is a red flag for how we select Supreme court Justices. For more than 190 years, the immutable characteristics necessary to serve on its Supreme Court were White and male. Of 115 Supreme Court justices in U.S. history, 108 have been White men. White men are batting .939, while the rest of us aren’t even close to threatening the Mendoza line (baseball terminology for batting .200).
As I lay pen to paper, there has never been a Black woman appointed or, to my knowledge, seriously considered to serve on the Supreme Court. The first Black Justice, Thurgood Marshall, was appointed in 1967. The first woman, Sandra Day O’Connor, joined Supreme Court in 1981, and the first Latina to serve on the court is Sonia Sotomayor, who joined the court in 2009.
Although I am proud and applaud individuals who become the first to serve in important positions, I still recognize that this results from America’s history of subjugation.
When President Biden reaffirmed his declaration to appoint a Black woman to the Supreme Court, the usual racist suspects came out of the woodworks attacking his choice because somehow, by making this declaration, they believed he was lowering the standards of the Supreme Court. Mind you, Biden hasn’t even named a nominee yet. Clear these individuals either believe in or want to trigger those that believe in White supremacy. They mean they don’t think any Black woman should serve on the Supreme Court.
It is equally disheartening that people who would claim that they are rational, reasonable people (overwhelmingly White), would move the goalpost for a nominee because she was a Black woman. They lie in wait to pledge their allegiance to meritocracy when just the prospect of a Black person piercing their forcefield of exclusion. A recent ABC/Ipsos poll said 76% of those polled wanted Biden to consider all possible nominees. A number this high would mean there are more than Republicans that equate White and male with merit.
The U.S. Constitution does not identify specific requirements necessary to serve as a U.S. Supreme Court Justice, but their theoretical principles put forth that a generally accepted. The American Bar Association, ABA conducts a rigorous peer review for all Supreme Court nominees believes the primary criteria for a Supreme Court Justice should be integrity, professional competence, and judicial temperament. The standing committee conducts the most extensive nationwide peer-review possible on the premise that the highest court in the land requires a lawyer or judge with exceptional professional qualifications. ABA site link.
Let’s look at how some of the Justices measure up under review. Before their confirmation, Clarence Thomas and Kavanaugh had numerous sexual harassment and sexual abuse allegations against them, most notably allegations made by Anita Hill and Christine Blasey Ford. Both presented credible testimony to support their claims. Many people have problems looking at these confirmation processes without pledging allegiance to their “team’s” position. Still, there’s no denying that just a hint of these allegations would disqualify you from getting almost any job in America, especially one that prioritizes integrity.
Some will say that these are just allegations, but many of these same people will attack others based on rumors, conspiracy theories, and disinformation. If you are being honest with yourself, these two men fail the integrity requirement miserably. I’d also add that based on his Senate Confirmation Hearings, Kavanaugh would receive an F for judicial temperament. He literally threatened revenge on Democratic senators.
Professional competence for Justices necessarily has many components. I have selected four of those components from the article Sheldon Goldman, Ph.D., professor of political science, entitled judicial selection and the qualities that make a good judge. Those characteristics are neutrality, fair-mindedness, well-versed in the law, and the ability to think and write logically and lucidly. Neutrality is defined as an absence of bias toward either of the disputants in a case. Fair-mindedness could be described as adherence to applying procedural due process for all disputants. Being well versed in the law and writing logically and lucidly should be relatively easy to evaluate.
The Federalist Society has immense influence over the selection of Federal Judges when there is a Republican President. Unlike the American Bar Association, which evaluates the traits of a nominee, The Federalist Society instructs the Republican administration to which potential nominees are acceptable, and there are currently six of the nine Supreme Court Justices that are members/ closely associated with the Federalist Society to bear that out. The organization began in 1982 as a home for law students at three elite law schools that felt they needed to establish a forum for students that did not ascribe to the view that the principles of the Constitution were fundamental but that the application of those principles was mutable. From those very modest beginnings, the Federalist Society has grown to become an ideological juggernaut (70,000 members) that has undue influence on our judicial system.
I bring up The Federalist Society because it is a doctrinaire organization that advocates for a textualist and originalist interpretation of the U.S. Constitution. This agenda authorizes them to turn a blind eye to the needs of modern society and is antithetical to the Constitution’s most admirable ideals. All the current Republican-appointed Justices, to varying degrees, have been indoctrinated, and their ability to be neutral in adjudicating cases is irreparably compromised.
I would go further by proposing that pledging allegiance to the concept of originalism represents inherent bias against any disputant that attempts to expand rights, except, of course, when it comes to the Second Amendment. I’ve always found it maddening that the Second Amendment, which is the most restrictive and specific of “affirmative” rights,” is treated as the most expansive. What part of “in order to maintain a well-regulated militia” do they do not understand?
Professor Goldman states fair-mindedness is “a sensitivity to the requirements of procedural due process as a means to a fair trial is the hallmark of a fair-minded judge.” It has been a longstanding principle of law that Courts follow earlier decisions to resolve current disputes unless “past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions.” https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052 David Schulz (Professor of Law at the University of Minnesota) highlights that out of 25,544 Supreme Court opinions and judgments; the court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.
The current Supreme Court consists of Justices who are more than happy to lie about their reverence for precedent during confirmation. Their actual mission is to sabotage years of precedent-setting decisions. In their minds, they’ll do whatever it takes, even if it means ignoring procedural practices as they did recently with the Texas Abortion Law. The right-wing majority allowed the Fifth Circuit to circumvent standard procedures by sending the case back to the Supreme Court of Texas instead of the Federal Circuit Court. The Appeals Court ignored the earlier directions of the Supreme Court, and the right-wing majority allowed this act of judicial insubordination. So much for fair-mindedness.
I remember many things from my time at law school, but something I’ll never forget is what my Constitutional Law professor told us. He said that the cardinal sin of any jurist or student is to predetermine what outcome you want and then retrofit the rationale for your decision. The Justices appointed by Republicans practice this most of the time. The current slate of Justices appointed by Republican Presidents has shown unbridled contempt for this principle. Often, their decisions are not based on sound legal reasoning. Instead, their decisions are driven by bias, corruption, and politics.
Much is often made of the intelligence and jurisprudential wisdom of conservative Justices. This adoration and praise are undeserved. Conservatives and even liberals wax poetic about the legal brilliance of Justices like Antonin Scalia and judicial restraint of John Roberts as Chief Justice. There’s a playbook they have all followed.
- attend an Ivy League or elite law school to legitimize themselves
- Adopt a judicial philosophy (Originalism)That is nothing but a thinly veiled cover for protecting and expanding a White male power structure.
The current Supreme Court has perpetrated some of the most intellectually dishonest decisions in the institution’s history. Each of these decisions has ripped at the fabric of our Constitution and democracy. Case in point, the current Chief Justice, Roberts, who wrote the majority opinion for Shelby County V. Holder, 570 U.S. 529, which eviscerated the Voting Rights Act of 1965 by declaring section 4(b) was unconstitutional because the coverage formula was based on data over 40 years old period section 4(b) an administrative provision, was used to nullify Section 5 which protected the constitutional right of voting against discriminatory practices. That would be like destroying your car’s engine because the spark plugs are too old.
If you review John Roberts’s career, it becomes evident that his raison d’etre has been abolishing any effective voting rights legislation. Roberts had targeted voting rights for decades dating back to the 80s when he clerked for Justice Rehnquist (another anti-voting rights zealot) and worked later in the Reagan administration as one of the driving forces behind efforts to render the Voting Rights Act of 1965 Inconsequential. Roberts was responsible for writing dozens of memorandums, speeches, and ghost-written Op-Eds for the administration, arguing that the Petitioner must prove intent to discriminate to trigger preclearance requirements. The Reagan administration suffered defeat in their efforts to preserve the need to show intent for preclearance requirements to kick in. But John Roberts was not finished.
Fast forward to John Roberts’s confirmation hearings to replace Chief Justice Rehnquist. Senator Ted Kennedy asked him: “I’m just trying to find out on the Voting Rights Act whether you have any problem at all, and trouble at all, in terms of the constitutionality of the existing Voting Rights Act that was extended by the Congress?” Sen. Kennedy asked.
John Roberts responded: “The existing Voting Rights Act, the constitutionality has been upheld, and I don’t have any issue with that,”
https://www.politico.com/magazine/story/2015/08/john-roberts-voting-rights-act-121222/
He lied.
Chief Justice Roberts’s decision to render the Voting Rights Act of 1965 impotent was not based on any sound legal reasoning, “calling balls and strikes, nor some allegiance to an originalist or textualist reading of the Constitution. No, it was fueled by a disdain for our Constitution and its protection for one of our most sacred rights, voting. Instead, this was the execution of a zealot’s 40-year crusade to achieve a result and then retrofit a rationale. What was his rationale? He believes racism and discrimination are no longer a problem, so preclearance is unnecessary. In the words of my Constitutional Law Professor, “That is so wrong that I don’t know where to begin to correct you.”
Now, what was that about a Black woman not being qualified to serve on the Supreme Court?
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