Memory of St. Ruth of the Supreme Court now resides with her dear friend St. Antonin of the Supreme Court in the respective left and right halls of judicial Valhalla.
And so we ask what will they do, what will he do. They being the Republicans in the Senate, he being their leader, Mitch McConnell.
And the answer is yes, the convenient-for-the-moment 2016 McConnell rule be damned, if McConnell can find and hold 50 votes in his majority he will add the vote of Mike Pence to ram through confirmation of a nominee to the Supreme Court of the United States (SCOTUS) – before the election, not after it, before. Or, failing that, in the post-election lameduck time from Nov. 4 to Jan. 3.
McConnell knows as well or better than anyone his risk of losing the majority. He knows right now his party looks likely to lose the presidency.
So this is his chance, perhaps his last certain chance to assure government his way for the next 20 years with a 6-to-3 court majority now and at least a 5-to-4 majority in a longer future.
It seems reasonble that liberal Justice Stephen Breyer, 82, would take the Bader Ginsburg lesson to heart and retire promptly if Joe Biden becomes president. But if Trump wins and Breyer fails to outlive a second Trump term, the court would move to a 7-to-2 Republican majority.
Even allowing Chief Justice Roberts might, with eye on his place and reputation in history, attempt to moderate that six-justice majority, such a court will give the radical reactionaries — not conservatives, these are not conservative men on the high court, they are radicals — will give them control over American law for decades.
Then too, if McConnell gets his sixth justice it will give Clarence Thomas judicial space to die or perhaps even retire one day if another Republican wins the White House and appoints a much younger candidate to add, oh, say 30 years to Republican tenure in that seat.
Bottom line as they say, McConnell has to go for it now.
But can he get it done?
Permutations
The majority leader has 53 votes without Pence, 54 with him. He needs 51, with or without Pence, although of course it used to require 60 votes to confirm federal judges, the numerical threshold of the “filibuster”
Former Democratic Senate Majority Leader Harry Reid changed that to 51 votes for all federal judicial nominations except the Supreme Court when the then Reublican Senate minority used the filibuster to delay from one Senate session to the next, President Obama’s judicial nominations. That reached calumnous conclusion when McConnell pinned Obama’s high court nomination of Merrick Garland to the wall, keeping his nomination from even going to a hearing, much less a confirmation vote.
Finding himself in 2017 with the majority and with Trump in the White House, but lacking 60 votes, McConnell ended the filibuster on Supreme Court nominations. That is how he got Brett Kavanaugh confirmed with 51 votes in 2018. Again, with Pence McConnell again has three votes to spare. If he falls short by four he loses.
Then who among the 53 might be in the wind? Are there four?
Lisa Murkowski of Alaska has affirmed her prior declaration that no one should be confrmed to the high court before the election, fudging the McConnell rule which applies to the entire final year of a presidential term not just up to the November election. Do not assume Murkowski will not refute herself during the lame duck. Assume nothing in politics in this, the Era of Hard Feelings.
Susan Collins of Maine is in deep political doo-doo, trailing in her race for a fourth Senate term. For home consumption in Maine, decidedly blue in the polls, she says the choice of a new justice should be that of the president elected Nov. 3. But then the senator has been known to waver in a voice that quavers.
Democrats look west whistfully to Utah Sen. Mitt Romney, a man constant in his probity who is deeply, honestly conservative. What he will do is known to him and probably Mrs. Romney. He will no doubt consult with family and advisors and take the political temperature of his state that in recent polls showed a 20 point preference for Trump.
There are besides Collins other Republican senators in jeopardy, notably Cory Gardner in Colorado, who has asked everyone to slow down and honor the late justice, which actually means he knows if he says now he’ll vote to confirm he will seal his defeat.
Also, Joni Ernst in Iowa (a state where there is a strong right to life strain and she comes of that), Tom Tillis in North Carolina and, lo and behold, Lindsay Graham in South Carolina.
Tillis shut the door immediately, announcing he is with McConnell all the way. It was inevitable he would because he cannot upset his and Trump’s base at home given his dead close race against Democrat Cal Cunningham. For him the politics weigh heavily toward confirmation now. So do his beliefs so the choice was easy.
Ernst is a do or die right-to-lifer and McConnell loyalist so don’t expect anything there.
Her fellow Iowa Republian Senator Charles Grassley is on record affirming the McConnell principle that SCOTUS vacancies in the last year of a presidential term should be left to the next president. But Grassley has reneged before and he has to protect Ernst at home — which he won’t if he sticks to his previous position in Washington.
In 2016 as a member of the Judiciary Committee and McConnell ally, Graham denied Garland a hearing much less a vote. He said then to be fair he would ever after agree to leave any high court nomination in a presidential election year to the president elected in such year to fill. But unexpectedly this year, he is in a close, close election.
That comes as a surprise to everyone, including the south’s original Graham cracker himself. No more than Tillis in North Carolina can Graham afford to lose a single vote from the red base in South Carolina.
McConnell made him chairman of the Senate Judiciary Committee a position in which Graham is obligated — obligated – to lead a confirmation effort and hearing when the majority leader wants it, like now, or to step aside as chair, something the always ambitious, attention seeking Graham would never do.
Who else? Lamar Alexander, former governor of Tennessee, retiring Jan. 3 at the end of this, his third Senate term. Once regarded as a traditional Republican moderate, Alexander has given Trump and McConnell every vote they needed from him. He did not disappoint, announcing he will vote to confirm now.
Likely then? A strong push by McConnell and the White House to rush through a confirmation before the election with just 43 days to Nov. 3.
If not?
Then a definite nothing-to- lose confirmation battle in November.
It has been noted that if Democrat Mark Kelly ousts Sen. Martha McSally to take over the Arizona seat to which she was appointed to fill out the term of the late John McCain, he could become a member of the Senate on or about Nov. 30. First though he has to win an election –in which the stakes are higher now than even before — and then make his way through a predictable minefield of Republican efforts to keep him from being sworn in promptly.
Permutations then within permutations if Kelly wins. Does McConnell schedule the confirmation in November while he still has McSally? Does she dare vote to confirm? Is she even a member of the Senate if she loses, Kelly wins but can’t yet take his seat? If she does vote is the confirmation challengeable and if so before what courts, federal or state?
See where this could be headed? Nifty stuff.
What’s the deadline for getting a Trump nominee confirmed, if Democrats win a Senate majority?
Jan. 3, 2021. Why? Because the Constitution sets that date to convene the new congress.
Who?
Trump announced almost immediately he will nominate a woman. That was forseeable. He has lists, he has already declared them. He announced Sept. 21 he would declare a nominee Sept. 25 or 26 following Bader Ginsburg’s funeral.
While he said he has five candidates, reports focus particularly on two women, both serving federal appellate judges, Amy Coney Barrett, 48, of Indiana, and Barbara Lagoa, 52 of Florida. Both are Trump appointees to federal appeals courts.
Lagoa was confirmed in 2017 with 80 Senate votes, Barrett the same year with just 55 votes. Lagoa like the late Justice Ginsburg is a graduate of Columbia Law School. Barrett is a graduate of the University of Notre Dame Law School. She would be the only non-Ivy League law graduate on the court. The other eight are all graduates of the Harvard or Yale University law schools.
Both are anti-choice with Barrett, a mother of seven, the more outspoken. Both are practicing Roman Catholics.
Barrett in particular is a darling of the religious right because she is so adamantly opposed to a woman’s right to choose and her overall extreme socially reactionary views. When Kavanaugh was chosen, it was reported Barrett was all but told by the White House she would be up next.
What changes that calculation is the election. She is from Indiana, same as Pence. She excites the red base but that doesn’t impact a battleground state so much as Lagoa who is from Florida. Trump cannot win without Florida’s 29 electoral votes. She would excite a key part of the Florida Republican base, Cuban Americans.
Religion and the Court
Isn’t it, shouldn’t it be offensive to talk about justices’ religions, religion and the court?
Yes it should. But it’s unavoidable and inescapable when the rawest issue the court faces is ensconced in Roe v. Wade, opposition to which is based on and in religion; notably in the particular religious doctrines and customs of Ultra-Orthodox Judaism, the Catholic Church, and fundamentalist, revivalist branches of Protestantism like Southern Baptists.
The population of the United States remains almost 50 percent Protestant, is about 23 percent Roman Catholic, 18 percent non-believing, 2 percent Jewish, 1.8 percent Momon (among the total 75 percent counted as Christian) 1 percent Moslem, and then many others.
Yet, before she died, Bader Ginsburg sat on a court with three Jews and six Catholics (albeit Neal Gorsuch attends the high Episcopal Church of his wife he was baptized Catholic). Five of the six Catholics are men, all on record as opposed to a woman’s right to choose. The sixth is Sonia Sotomayor, who is pro-choice. Without Bader Ginsbug the pro-choice contingent reduces to Breyer, Sotomayor and Justice Elena Kagan.
Counting Gorsuch in the faith in which he was baptized and raised, either Barrett or Lagoa would bring the court’s memberhip to seven Catholics, two Jews but not a single Protestant, far out of balance with the nation.
The Chief Justice this year in a key decision tempered his four arch male associates on the issue, at least as differentiating between further limitations on Roe designed to strangle choice as opposed to reversal in the entirety.
Add Barrett or Lagoa to the court, or anyone else of their ilk, and the chief justice will not be able to keep his finger in the ideologial dike and might not even want to given his core religious convictions.
With or without Roberts, have no illusions. It is the determined, expressed aim of the Republican Party Platform to overturn Roe. It is the baseline expectation of that party and the vast majority of its voters of any Supreme Court if this seat is filled by another Trump appointee.
It takes four justices to decide to hear a case. Within months of getting to a 6-to-3 Republican majority the court will find and certify a case that can result in nullification of Roe. You can make book on it. Possible even is that a red state will jump to adopt an abortion abolition law the majority can seize as the vehicle.
And that is why, however ugly it is, religion is an inescapable subject when discussing the court. Roe exposes nakedly a question less of constitutional law than theology and theocratic dictate.
Ironic then is that McConnell’s project to fill the federal judiciary with very conservative lawyers blessed by the Federalist Society and gain an overpowering SCOTUS Republican majority, for him probably has little to do with Roe except as a vehicle to empower it politically.
For McConnell the interest is in a radical judiciary to rule across an unbounded field of commercial, environmental, civil rights, voting rights, housing, gender, campaign contribution and myriad other cases.
His objective is a judiciary to upset, reverse and gut as much of the New Deal, Fair Deal, Great Society and the Obama legacy as possible, while upholding new laws adopted by conservative state legislautres and possible Republican congresses in the future.
The Problem That Is The Court
Once again a vacancy on the SCOTUS exposes how deeply divided is the United States of America.
It is as though all the ghosts of the Civil War gather on the steps of the Supreme Court Building on Capitol Hill and in the chamber of the United States Senate.
The cause of the conundrum is the same whether you are left or right politically. It is that the court through more than 200 years since Chief Justice John Marshall set down the principle of judial review in Marbury v. Madison, has taken upon itself and conferred upon itself greater and greater authority.
Nothing in Article III of the Constitution that established the federal judiciary confers this inferred power, exalted in Marbury and expanded for two centuries.
Article III is explicit as to the kinds of cases federal courts may hear and resolve. It says absolutely nothing as to whether the courts, including of course the Supreme Court, can determine whether a statute is constitutional. The court said in 1805 it had that power and because it said it, it has it.
Then too it is the Bill of Rights that truly opened up judicial review. The amendments to the Constitution even more than the Constitution itself form a field for judicial constitutional review and determintion.
Fortunately as it turns out on balance the high court and lesser federal courts have asserted this authority and made it part of American jurisprudence because otherwise thousands of really bad state and federal laws would be on the books.
But the fact is that neither the left or the right when they don’t like the result will ever surrender the accusation that the court is a third super house of the national legislature, able to make law above and beyond the power of Congress to do so.
It only depends on which tilt the court takes and in what historic era or epoch it tilts.
Tilting has given the nation Dred Scott, Pless v. Ferguson, a raft of decisions that undermined the New Deal, notably evisceration of the Blue Eagle National Recovery Act, Buckley v. Valeo, and Citizens United. But it has also produced Brown v. Board of Education, Gideon’s trumpet, Miranda, and Obergefell v. Rogers; and on and on, good and bad, bad and bad, good and good and – oh yes – Roe v. Wade.
Thus the court is the ultmate political battleground and in becoming so its membership is a cultural, social, economic and special interest fight to the death.
Article III puts no limit on judicial terms of the courts of the United States. There is no term limit, no age limit, nothing to prevent judges from serving on and on and on until, for example, one has served 25 years and dies, frozen on the court by politics.
The Congress can change the number of justices on the high court. This has happened 10 times. While the number of justices ranged historically from 5 to 10, the 9-member court has been a fixture for more than 150 years.
When, re-elected in a landslide, FDR attempted in 1937 to add members – to pack the court in the parlance of the exercise — to overcome its decisions knocking down his laws and programs, the president lost and lost big. That outcome is something to think about now.
The Congress cannot however limit judicial tenure in any way. It can’t set a judicial retirement act because Aritcle III says as to tenure only that judges “…shall hold their Offices during good Behavior…”
So we have had too many justices serve into their eighties, even early nineties.
If seats turned over more often and more sensibly then the court would be less, far less a battleground.
In my state, New Jersey, the State Constitution provides for an appointed judiiary but sets a mandatory retirement age of 70 for judges, notably including the seven members of the New Jersey Supreme Court. Just this summer a justice who will be 70 next month stepped aside and a new justice was confirmed and seated.
Our constitution also requires all judges, inluding the seven justices, be confirmed to an initial seven-year term subject then to reappointment and reconfirmation to tenure – but only to age 70. The power to confim is held by the New Jersey Senate.
Appointments to the New Jersey Supreme Court even when there are governors and State Senates of opposite parties simply do not arouse the political fights to the death that SCOTUS nominations do. They are not for a lifetime. They are time-limited by the retirement age. It lowers tempers, reduces tensions, evens the stakes.
Would a federal judicial retirment age reduce the extreme political tension and division that goes with filling SCOTUS vacancies? Most probably, given the example of New Jersey and just plain common sense.
But that cannot happen without amendment of Article III and that plainly is not going to happen.
So we are stuck with the American body politic severely wounded each time there is nomination to fill a high court vacancy.
But this one – this one promises to be the most bitter, divisive and wounding ever.
The court is not a solution to what ails the United States of America, it is the essence of the problem, the terrible, insoluble problem of a nation at war with itself in this, America’s Era of Hard Feelings.
Lest we forget, judges wear black robes, not angels’ wings.
Peeling the Onion 