Demand for ‘most qualified’ judge means ‘no Black woman’

 

Gordon L. Weil

In the celebrated movie “Casablanca,” the police chief makes a show of exclaiming that he is “shocked” to find gambling at Rick’s bar.  He orders it closed just as an officer hurriedly hands him his winnings.

That looks pretty close to Republican criticism of President Joe Biden keeping his campaign promise to nominate an African American woman to the Supreme Court.

Some Republicans suggest his intent is shocking, overlooking anything shocking about their having blocked any consideration of one of President Obama’s nominees and zipping through the review of then-President Trump’s choice of Amy Coney Barrett.  Biden’s choice will likely be confirmed under the GOP’s own short-cut rules, so posturing is the best they can do.

They assert that Biden is playing politics with the appointment instead of picking the most  qualified person available, regardless of race or sex.  Some people are likely to swallow the line that past nominees were selected purely on merit, while Biden is playing politics.

Let’s face it. The selection of Supreme Court justices has always been political.  And throughout history, Obama aside, presidents proposed and the Senate confirmed nominations heavily favoring people like themselves – white men.  In short, sex and race have always been a factor.

Sen. Roger Wicker, a Mississippi Republican, sees it differently.  “The irony is the Supreme Court, at the very same time, is hearing cases about this sort of affirmative racial discrimination and while adding someone who is the beneficiary of this sort of quota," he told an interviewer.  He assumed that any Black woman nominee would have enjoyed affirmative action.

Contrast that statement with the remarks of GOP Sen. Lindsay Graham of South Carolina.  “We’ve only had five women serve and two African American men.  So let’s make the court more like America.”  That’s affirmative action.  Graham has usually accepted the nominees of either party’s president. 

Sen. Susan Collins, Maine’s GOP senator, has said Biden’s promise to pick a Black woman, an appointment she could accept, is unusually “political.” She’s in her fifth term in the Senate and surely knows that judicial nominations are political.  In fact, she rejected Trump’s Barrett rush.  She has merely condemned Biden for being “clumsy.”   

All Supreme Court justices are lawyers.  For most of American history, the political system kept women and African Americans from becoming lawyers. The obvious result was a small pool of possible candidates to draw from, even if there were no discrimination in judicial picks.

Dean Erwin Griswold asked each female member of Harvard Law School first year classes why they were taking the place of a man.  The late Justice Ruth Bader Ginsburg was one of those women and, having become a lawyer, she could not get a job in a law firm.

An American Bar Association report reveals the relative standing of Blacks and women among lawyers and judges.  The numbers tell a story of racism and sexism.

Of all lawyers, 85 percent are white, while 5 percent are Black.  New lawyers are joining the profession in just about the same ratio.

Women are about 37 percent of all lawyers, while 63 percent are men. In law schools today, the division between men and women is about equal.  When Ginsburg was a law student in the 1950s, less than two percent of her classmates were women.

Appointments to the federal courts lag behind the ratio among all lawyers.  In the latest three years for which information is available, 76 percent of those named have been men and 24 percent have been women.  By race, 84 percent of the appointments have been white and 4 percent Black.   

Using the latest 30-year rate of female judicial appointments, it would take about 40 more years until the number of women and men named to federal courts were equal.  Nominations of Black judges are more difficult to forecast because of their limited numbers.

The ABA data also suggest that increases in the number of federal judicial appointments of both women and Blacks have occurred under Democratic presidents Bill Clinton and Barack Obama and the rate has slowed under Republicans George W. Bush and Donald Trump.  That puts Biden’s move in historical perspective.  Elections have consequences.

Wicker forecast: “This new justice will probably not get a single Republican vote.”  Every senator should consider the merits of any nominee. But Wicker was saying that a still unnamed Black woman, whatever her record, could fail to get the support of a single GOP senator.  That’s the reverse of affirmative action.

Would such a denial of even minimal bipartisanship simply be caused by automatic Republican opposition to any Supreme Court nominee of a Democratic president? 

Or would GOP opposition amount to placing a seal of approval on a federal court system that could for many more decades feel the slowly dying grasp of the past?

Government by the people reversed by Senate refusal to act

Gordon L. Weil

In the U.S., somebody always wants to block somebody else from voting.

From the outset, people with property didn’t want average people to vote.  Whites didn’t want blacks to vote and men didn’t want women to vote.

The country is a great democratic experiment, but let’s not get carried away.  Anybody in political control was unlikely to allow others in on it.

But pressure for popular control could not be denied. African Americans got the right to vote, at first only in theory.  The popular vote replaced state legislatures in electing senators. Women gained the right to vote.  Eventually, the country moved toward a political process open to all. It took almost two centuries.

But popular democracy has begun to unravel.   Ironically, the largest turnout in history for a presidential election has unleashed the strongest efforts to turn back the rapid progress made since the passage of the 1965 Voting Rights Act.

From 1933 through 1994, Democrats controlled Congress for all but two years.   To end that control, the Republicans had to take the South away from their rivals and to make it more difficult for Democrats, especially African Americans, to vote.

Opposition to the 1964 Civil Rights Act led many southerners to jump to the GOP.  It expanded historic Democratic efforts to limit access to voting.

While the GOP’s strategy worked, it was thwarted in 2020 by two factors – Covid-19 and Donald Trump.  The virus threatened to keep voters away from the polls, calling for finding ways to help people vote.  Trump’s possible reelection stimulated unusually strong support and even stronger opposition.

Responding to Covid-19, many states expanded mail-in voting, and developed other measures including public drop boxes and more convenient times for voting including at places remote from Election Day polling locations.

Easier access attracted more voters. Nationally, people of each party and other electoral subsets turned out in greater numbers.  While improved access did not favor Democrats, it might have been a factor for them in swing states. 

Since 2020, states under GOP control have cut back on the use of methods easing access.  Early voting dates and polling places have been reduced.  New forms of voter ID are required in some states. Texas even claimed it ran out of voter registration forms due to paper shortages. 

The 2022 congressional elections will take place in newly designed House districts.  GOP-controlled states continue to pack Democratic voters into as few districts as possible.  The Democrats have done the same in a few places, but they have fewer opportunities because they control fewer states.

House elections this year are expected to produce GOP control, caused mainly by voter suppression and the new round of redistricting.  The Supreme Court won’t touch politically driven district design. It’s even tough to get it to look at race effects.

Congressional Democrats have thus far failed to enact federal legislation overriding voter suppression.  Added to reduced voter access, in the wake of the 2020 election some Republican states have moved to control how votes are counted.  

Trump attributed his election loss to corrupt vote counting resulting partly from the use of mail-in ballots.   He complained that mail-in ballots led to vote tampering, because early counts in his favor gave way to wins by Joe Biden after the envelopes were opened.  Repeated reviews, including by Republican officials, found no evidence that Trump’s claims were true.

When he and his backers failed with those claims, they attacked the vote counters.  In Georgia, for example, Brad Raffensperger, the GOP Secretary of State, refused Trump’s request to reverse Biden’s victory.  The GOP-controlled legislature eliminated his election authority in favor of its own designees.  Similar moves occurred in at least seven other states.

The Constitution gives states power over the “times, places and manner of holding elections,” but Congress may override them.  Partisan control of elections could end up giving one party a way to decide on winners, no matter the popular vote.  Democratic efforts in Congress to require multi-party control of the process have failed, thanks to the filibuster and solid GOP opposition.

The January 6, 2021 insurrection tried to force Congress to ignore the official results of presidential elections in some states.  Congress might now amend existing law to ensure that vote counting is purely procedural, just as it has always been.

Republican Sen. Susan Collins is a leader in that effort, which would do nothing more than preserve the historical process.  She has not supported any voter protection.  Independent Sen. Angus King expresses alarm at efforts to reduce popular control.

Faced with stepped-up GOP voter suppression, Democrats need to mount massive get-out-the-vote operations and to launch legal challenges to partisan control of the election process.  The political wars this year could grow even more bitter and hard fought.

  

Divided SCOTUS decides when Congress doesn’t

 

Gordon L. Weil

The U.S. Supreme Court looks like a divided legislature.

Seven of the nine justices expressed their sharply differing opinions in two recent Covid vaccination decisions. Only Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, joined in the majority in both cases, and they alone refrained from making a comment.

Despite appearances, the central issue was not Covid vaccination. The rulings were about the role of the federal government and of the Court itself.  They were political, but more about personal beliefs than party affiliation.

The Court decides on what the law means, applying long-established rules of interpretation.  Justices are influenced by their views in applying those rules.  These views may go beyond partisan politics; they may be based on broader conservative or liberal ideology.

Justices making “political” decisions is nothing new.  John Marshall, the early and perhaps the most influential chief justice, favored a strong federal government. Between 1801 and 1835, his decisions always promoted this objective, aimed at influencing the young nation’s political development.

In both recent Court decisions, conservatives and liberals each expressed their political judgments.  All agreed on the serious threat to public health and the high personal cost of Covid-19, but that’s all.

In one case, six conservative justices interpreted the law narrowly, ruling that Congress had not given the Occupational Safety and Health Administration the power to require vaccinations in large companies.  They opposed an administrative agency exercising broad power without clear congressional approval.

Congress itself might have adopted such a mandate or given OSHA that explicit power. In effect, the Court found that Congress could have acted, but didn’t.  The Court has decided in major cases, like Roe v. Wade, when Congress didn’t, but this time the majority would not fill in the blank.

The three liberal dissenters had no doubt that Congress had given OSHA the necessary authority.  They concluded that the Covid crisis was so acute that the Court could interpret the law to help halt the spread of the virus.

The second case produced a majority of the three liberals, plus Roberts and Kavanaugh.  A simple majority of five controls the Court.  They ruled that federal funding for hospitals gave the government power to attach conditions, including a vaccination requirement for the medical staff. 

The conservative dissenters opposed a role for the federal government and found no authority for Congress to attach such conditions.  Kavanaugh split from his fellow conservatives and immediately came under blistering right-wing attacks for his independence.

In effect, conservative justices had turned against Marshall, the historic conservative who had promoted a strong federal government. Instead, they asserted that individual states have the power to fight the virus.

Behind its decisions, the Court wrestled with the question of whether Congress was doing its job. Its debate about what Congress meant highlights the failings of the legislative branch, which is supposed to set policy.  It’s no mistake that its powers compose the first Article of the Constitution.

In fact, Congress is not a co-equal branch; it is the first among equals.  Article III assigns the Supreme Court judicial powers, but “with such exceptions and under such regulations as the Congress shall make.”  It can also limit presidential powers.

When it fails to pass laws addressing public issues, Congress leaves it to the president and the Court, increasing their political power.  When the justices are drawn into making major political decisions, the Court’s neutral objectivity may suffer. 

If people believe it is just another political body, its authority can be weakened.  Roberts has been trying to maintain respect for the Court as an impartial body that should stay out of politics.  His positions in the two cases might be intended to reveal his sense of judicial nonpartisanship.

Both decisions were “by the Court” and unsigned. Technically, they did not end the cases, but left the final blows to lower courts.  The Court increasingly uses such quick procedural decisions, known as its “phantom docket” to make major rulings.  Chances for careful consideration among the justices are lost.

The media reported that the result of the decisions was to limit the scope of President Joe Biden’s vaccination policy, which could have political effects on his presidency.  But it paid less attention to the implications of the decisions that went beyond his political fate or even vaccinations.

The ongoing inability of Congress to resolve issues by making tough decisions undermines the democratic system.  Much of the reason is the Senate filibuster, which halts bills by requiring 60 votes to consider them.  Only a simply majority of senators is needed to approve the lifetime appointments of new judges.

If the Court increasingly serves as the federal legislature, then the main purpose of presidential and congressional elections may come down to picking the people who pick the justices.