Biden's Supreme Court Nomination

So what do I think of Ketanji Brown Jackson, President Biden's historic choice to be the first black woman to sit on the Supreme Court?

Well, she certainly has the right qualifications.  She has been a public defender, bringing a perspective to the Court as notable as well as her racial and gender background.  She was also a district judge for the United States District Court for the District of Columbia from 2013 to 2021, and during that time she famously ruled that former Trump White House Counsel Don McGahn had to testify before the House Judiciary Committee in its impeachment inquiry against Trump, saying that those "who have been subpoenaed for testimony by an authorized committee of Congress must appear for testimony in response to that subpoena" even if the President orders them not to comply, adding that "Presidents are not kings."

So, yes, she's qualified.  I would give her some advice about her Senate confirmation hearings, though . . . she ought to do something about her hair.

I'm serious.  Her hair is unpresentable.  I'm not being racist or sexist.  When President Reagan nominated Robert Bork to the Supreme Court in 1987, Bork rejected advice that he get rid of his beard, and it actually helped doom his nomination.

Honestly, would you confirm a Supreme Court nominee with a beard like that?

That Supreme Court seat ultimately went to the clean-shaven Anthony Kennedy.

Not that Bork looked all that much better clean-shaven . . . 

All that aside, Judge Jackson should be confirmed easily, because the Democrats still control the Senate.  Some people think United States District Judge Michelle Childs might have been a better choice, though, because she too has a a strong record and also had strong support from a bipartisan group of lawmakers from her home state of South Carolina that included Representative James Clyburn and also both of South Carolina's Republican senators, Lindsey Graham and Tim Scott.

Also, she has better hair.

Though, it does look like Ketanji Brown Jackson will bring diversity to the Supreme Court, because, as far as I can tell, at least, she is a Protestant. 😉

Supreme Injustice

Liberals are tearing their hair out over Justice Anthony Kennedy's retirement from the Supreme Court, but before any of you get heated up over it (isn't it hot enough outside?), bear these things in mind:

First, it is true that Justice Kennedy was a swing vote on key issues.  He was the swing vote on marriage-equality issues, all right, but he was also the swing vote on the Citizens United ruling and the upholding of the Trump travel ban, ans his parting gift was a ruling gutting public-sector unions.  When he first joined the Court as the replacement for Lewis Powell (no liberal himself), he was a more reliable conservative.

Second, the Court's entire composition changes with each new member, just as the Who were a different band after Keith Moon did. The chemistry changes, the power shifts, and someone else becomes a swing vote. The likeliest candidate for that position now is Chief Justice John Roberts, who is a reliable conservative but is also a minimalist who cares about the Court as a impartial, nonpartisan institution ans was the justice who saved President Obama's health insurance mandate (which Congress has since repealed).      

Third, it will be tougher for Trump to get a Supreme Court nominee through, because Senate Republican leader Mitch McConnell has to deal with a 50-seat caucus (Arizona's John McCain is still out of commission), from which a couple of Republican senators might defect when voting on a nominee.  The Senate Democrats running for re-election in states carried by Trump in the 2016 presidential election are in a more secure position now then they were when most of them voted to confirm Neil Gorsuch.  They're likely to be less intimidated now.

And by the way, I've been led to understand that many Democrats feel they should have made more of a fight to get President Obama's Supreme Court nominee Merrick Garland a hearing and a vote.  Oh, now you think of that?  You certainly never thought Hillary would lose the 2016 election and the Democrats would stay in the minority in the Senate going into the current Congress, mainly because your imaginations weren't elastic enough to ponder the idea that Hillary was not, in fact, inevitable.  You were even hoping Hillary would appoint someone else because you didn't think Judge Garland was liberal enough, so you didn't even bother having his back.  You'd thought the Hobby Lobby decision on employer-provided contraception coverage would make the Court an issue and arouse the base in the 2014 midterms - yeah, why did you lose the Senate then?  The truth is, Democrats have always gone soft on the issue of the Supreme Court and the federal judiciary and have had no strategy to appoint judges who are on their side.  When it comes to packing the courts, Republicans play chess.  Democrats play checkers.  

Well, Dems, you'd better learn how to play chess fast, because, regardless of what I've said here, this Supreme Court vacancy could still very well be for all the marbles!  If you wimp out here, you might as well Whig out.      

Gorsuch and Such

The Whigs - er, Democrats - clearly don't know when and how to pick a fight.

Despite getting support from Democratic senators Joe Manchin and Heidi Heitkamp of, respectively, West Virginia and Heidi Heitkamp of North Dakota - two states that admittedly would not have existed were it not for Republican administrations bending the rules - and also Democratic senator Joe Donnelly of Indiana, Supreme Court nominee Neil Gorsuch faces an otherwise united front of the Senate Democrats ready to oppose him to the point of filibustering his nomination.  Although he is a right-wing honky, he is highly qualified, he has impeccable credentials, and he is likely the best Supreme Court candidate that anyone is ever going to get from a Republican President - especially the current Republican President.  Democrats are nonetheless ready to filibuster him for two primary reasons:

• He's right-wing.
• He's a honky.

But I understand he does have a good singing voice.

Look, this is a fight Democrats are bound to lose.  They could pick fights they can win, like one on health care, but they'd obviously prefer to let ordinary citizens do the fighting.  But Gorsuch is going to get on the Court.  Not only does he have at least 55 votes, but if the Democrats try to stop him, Senate Republicans will likely change the rules to prevent a filibuster and steamroll the minority (something the Senate GOP is very good at!).  I know that the Democrats are also trying to avenge Merrick Garland for never getting a hearing, but when they try to deny someone like Gorsuch an up-or-down vote for a petty reason like that, they further denigrate an already denigrated legislative chamber, and they further politicize an already politicized confirmation process.  In other words, it means that the Democrats are no better than the Republicans are.

That's precisely why six percent of the American electorate voted in 2016 for third-party presidential candidates.

Senate Democratic leader Charles Schumer has suggested that no Supreme Court nomination from Trump should go ahead until the legitimacy questions regarding Trump that have been raised by alleged collusion with the Russians during the 2016 presidential campaign have been put to rest.  Yeah . . . Chuck, you're going to have to do better than that.   

The Democratic strategy against Gorsuch does not make sense when Gorsuch would be replacing the late Antonin Scalia on the Court, because it wouldn't change the court's ideological balance.  They also insult the handful of Republican senators who wanted Merrick Garland to have hearings.  It's best for Democrats to hold their fire until Trump tries to name a right-winger to replace Ruth Bader Ginsburg or Stephen Breyer should either one of them die or retire.  If  Democrats waste their time stopping Gorsuch and cause the Republicans to change the filibuster rules irrevocably, there will be nothing - nothing! - to stop the GOP next time, when it counts!  If Senate Republican leader Mitch McConnell is bluffing on the proposed rule change, it's better to call his bluff later rather than now. 

And by the way, I don't want to hear any complaints from Democrats about those of us who voted for Jill Stein and how we didn't care about what would happen with the Supreme Court.  What, you were afraid of someone who only pays lip service to the middle class but looks out for corporate interests and is a complete narcissist getting into the White House and choosing Supreme Court justices?  Well, that's why I didn't vote for Hillary.  If you were afraid of losing the opportunity for a Democratic President to name a Supreme Court justice, why didn't you back someone other than Hillary for the Democratic presidential nomination?  Why didn't you at least get elected a Democratic Senate that would have gotten Garland confirmed in President Obama's last seventeen days in office?  Why didn't you lobby hard for Garland to get confirmation hearings before the election?

(Pointless aside I couldn't resist: Both Merrick Garland and Neil Gorsuch have seven-letter surnames starting with the letter "G."  Ya think this is Trump's way of tweaking his opponents?)        

Elena Kagan

So what do I think of Solicitor General Elena Kagan, President Obama's choice to succeed John Paul Stevens on the U.S. Supreme Court? I don't know, really, for she hasn't offered many clues to what kind of justice she would be.

Elena Kagan has been touted by the President as a "trailblazer," as she was the first female dean of Harvard's law school and developed a reputation there for being open to different points of view and building consensus. She's already served Obama as Solicitor General of the United States, arguing cases for the government. Her one failure? She argued to prevent elections from being tainted with corporate money on behalf of the citizens of the Union . . . but lost to Citizens United.

Maybe her lack of a paper trail is a good thing, because it won't start any ideological battles in the Senate confirmation hearings. Ideological battles have already started outside Washington, though, with right-wing talk radio commentators blasting Kagan for refusing to let military recruiters set up shop at Harvard Law School because she opposed their policy on gays openly serving in it. Some people have suggested that she is gay because she's been known to . . . brace yourself . . . play softball! Odd, given that softball is the female version of baseball, so organized to let women play the sport.

One battle that has already started is her lack of judicial experience, a condition that didn't bother Republicans when President Nixon named Assistant Attorney General William Rehnquist to replace the esteemed John Marshall Harlan II on the Supreme Court in 1971. Nor were Republicans ready to disagree with President George Bush when he named Clarence Thomas - with only two years' experience as a judge and a horrible record as director of the Equal Employment Opportunity Commission - to the Court in 1991.

And if the vast judicial experience of Samuel Alito leads to rulings like Citizens United, I'll pass, thanks.

Actually, many liberals are disappointed with Kagan's selection because they find her too accommodating to conservative judicial philosophy. They don't think Kagan is liberal enough; they wanted someone as far to the left as Antonin Scalia is to the right. But given united Republican opposition against such a judicial appointment in the Senate - and given the fact that the United States remains at heart a center-right nation, an anomaly in the Western world - anyone hoping for Obama to bring about the second coming of William O. Douglas was bound to be disappointed.