The news getting much of the buzz today is the announced retirement of Supreme Court Associate Justice Stephen Breyer. The retirement presents President Biden with the opportunity to appoint a new justice. Whomever he appoints is likely to exercise influence for decades—it’s an important decision for the president presuming he has at least one eye on his legacy.
During the campaign he promised to appoint a black woman. Whomever the president appoints I hope it is an experienced and qualified jurist, committed to following the law and the principles of law and providing opinions on the cases brought before him or her on that basis.
I also hope that the Senate Republicans will take this opportunity to heed Sam Clemens’s advice:
Always do right. This will gratify some people, and astonish the rest.
In this case “right” is confirming President Biden’s appointment expeditiously if the designate is qualified which I presume will be the case and is supported by Senate Democrats which I have no reason to doubt. There is some reason to believe that might actually happen, as Meridith McGrawe and Hailey Fuchs report at Politico:
Top officials at conservative judicial groups said they viewed the current landscape as less than conducive to a successful bare-knuckled confirmation fight. A Breyer retirement was long expected, Republicans do not control the Senate and, most importantly, a new justice would not shift the court’s ideological balance, let alone its majority.
“The stakes just aren’t quite as urgent — the left or the right†compared to the fight to replace the late Justice Ginsburg, said Josh Blackman, a law professor and a legal expert with the conservative Federalist Society and an adjunct scholar at the Cato Institute.
Alternatively, either President Biden or Senate Republicans or both can take this appointment as an opportunity to energize their respective bases for the upcoming midterm elections. That’s not the statesmanlike thing to do but it is consistent with recent experience. And round and round until we can’t stand it any more. I hope that’s not the case but I suspect it will be.
Well, let’s hope its the former. Elections have consequences.
Politically, it seems a bad strategic move to vigorously oppose. Separately, its a sad commentary that the first qualification cited is race and gender. I wonder if Asians, Native Americans, Hispanics, LBGTQ yada, yada, yada communities will feel slighted.
Well; short term, the effect is less on the court rather then it’s effects on the Democrats and Congress.
I expect the animosity towards Manchin and Sinema will vanish; and Manchin and Sinema will be happy to show that they are Democrats.
Biden will be happy the conversation will be on guessing who he picks — a topic much easier then inflation, pandemic, and Russia.
I presume about a month or so of the Senates time in late spring will be spent on the nomination. Combined with the need to pass a budget; there’s not a lot of legislative time remaining until summer comes and election season starts.
That’s how we’ll be able to identify the relative priorities or Republicans, Democrats, or both. If President Biden names his nominee quickly and the committee hearings begin in the spring, they want to get someone new in the seat as quickly as possible. If the nominee isn’t picked until summer, the objective would be to disrupt campaigns and energize the base for the election.
Yes,â€going right,†falling in line in approving a “qualified†nominee, is usually directed at republicans when it’s a democrat administration involved with the appointments. However, “going right†takes an entirely different stance when directed at democrats’ cooperation in approving the nominees of a Republican administration. What it means for Dems is “oppose,†going to the greatest lengths to deny the opposition party from filling cabinet posts as well as judicial ones . Kavanaugh would be a recent example of the Dems “going right.â€
I also agree with Drew’s point, of questioning nominating a person mainly through the specificity of their color and gender, rather than the overall merits of their qualifications. This is just a continuation of artificially continuing an Affirmative Action menu of pandering to the Dems playbook keeping identity politics alive and well.
With regards to timing; I was thinking more about the implications for Build Back Better or whatever they call the next iteration of it.
I disregard points about demographics, all Presidential appointments take into account factors which are not allowed in regular employment contexts — Reagan campaigned on nominating the first women to the Supreme Court.
I am more interested whether Biden will pick someone from the big 2 (Yale/Harvard) or from some other law school, a hobby horse of mine.
Basically, I think that Ketanji Brown Jackson checks all the right boxes: woman, black, Harvard Law grad, sitting judge, clerked for Breyer, young enough to serve for a while.
“I disregard points about demographics, all Presidential appointments take into account factors which are not allowed in regular employment contexts — Reagan campaigned on nominating the first women to the Supreme Court.”
It wasn’t right then. Its not right now.
“Kavanaugh would be a recent example of the Dems “going right.†”
For the record. I was molested by a black woman many years ago. Can’t remember exactly when or where, or her name. I may recall the name after Biden makes his appointment. I intend to make it an issue during the nomination hearings. And you can read about it in my upcoming book: Unfit Justice – How I Recovered from the Predatory Behavior of a Supreme Court Nominee.
https://freebeacon.com/courts/eyeing-supreme-court-vacancy-left-wing-dark-money-group-pushes-ketanji-brown-jackson-for-top-appeals-court/
Jackson replaced Merrick Garland on the DC Circuit Court, which was just one leg of her upward journey to the Supreme Court. When she was appointed to her current position, expectations were that she would hover there only a short time, until Breyer retired (something he has been urged to do for some time).
In the meantime Jackson’s advocates and sources of money have come from “dark money groupsâ€such as Demand Justice. This organization is a dark money network managed by DC-based Arabella Advisers – a group, who has raised more than $1.3 billion – and does not disclose it’s donors. However, one financial source revealed was that George Soros, though his Open Door Foundation, provided $2.6 million funding to this leftist group.
Ironically, Dems, under Sheldon Whitehouse, have attacked conservative non-profits for their donations, while anything derived from radical disrupters like Soros and other secret donors is apparently ok.
The hypocrisy of politics!
Finally, like Dems require of Republican supreme court nominees, Jackson’s decisions and opinion papers should be on full review and scrutinized, dated back to the beginning of her career, meaning this should be a thorough process rather than a quick, expedited one.
Brown is overqualified and too old. Barrett was 48 with 3 years as a judge. Thomas 42 with one year as a judge. They just need to find someone in early 40s with at least one year as a judge.
Steve
Ketanji Brown Jackson is 51. I presume you’re being sarcastic. And if you mean Janice Rogers Brown, yes, she’s too old and I doubt that Democratic senators would support her any more today than they did in 2003.
https://freebeacon.com/courts/eyeing-supreme-court-vacancy-left-wing-dark-money-group-pushes-ketanji-brown-jackson-for-top-appeals-court/
Jackson replaced Merrick Garland on the DC Circuit Court, with expectations she would not hover there long, on her way up to becoming a member of the Supreme Court.
Advocates and funding for her judicial advancements include Demand Justice, a dark money network managed by DC-based Arabella Advisers. This group, which has raised north of $1.3 billion, declines to disclose it’s donors – one of which was revealed to be global disrupter George Soros, who provided $2.6 million, through his radical Open Society Foundation.
Ironically, democrats, under Sheldon Whitehouse, have attacked conservative non-profits for their donations, especially during Trump’s time in office, demonstrating the sheer hypocrisy of political gaming.
If Jackson indeed becomes the nominee to take Breyer’s place I would assume she would undergo the same scrutiny the last 3 members of the High Court were put through. Mainly all her decisions and legal opinions, from the very beginning of her law school and legal,career, would be researched and open for analysis, even those pertaining to the minutiae. Consequently, Jackson’s approval process should be one covering all the bases of her having unbiased judgment in dealing with Constitutional issues – a task that could hardly be handled in an “expedited†manner.
Just as a point of reference.
Age when nominated.
Barrett (48).
Kavanaugh (52)
Gorsuch (50)
Sotomayor (54)
Kagan (50)
Roberts (50)
Alito (55)
Souter (50)
Ginsburg (60)
Thomas (43)
Kennedy (52)
Scalia (50)
O’Connor (51)
So the ideal age for new Supreme Court justices seems to be 48-55. Ginsburg and Thomas were the exceptions. I believe all the mooted candidates are in that age group.
Ironically, once Breyer is replaced, the Supreme Court will be significantly younger then the President or the leaders in Congress. Contrast that to be a decade ago — when it seemed the Court seemed to be run by septuagenarians and octogenarians.
Many of you seem stuck on averages of age among the Supreme Court jurists. Who cares! No one, though, has discussed extreme ideology of a nominee. I know republican nominees for this position are even grilled on the influence their religion might have on their decisions – i.e. Barrett.
I would like to know what Jacksonâ€s opinion is on illegal immigration, gun control, private property rights, vaccine mandates, and other timely issues of the day.
My point is there is nothing extraordinary about any of Trump’s judges. They fit the profile of people who have joined the Supreme Court over the last 40 years. And likely Biden will choose a person with that profile.
On ideology, anyone Biden nominates will likely be similar in philosophy to Breyer, Kagan, Sotomayor, Ginsburg. That’s reality and as Lindsay Graham acknowledged, “elections have consequences”.
I have read when Trump was thinking about Kennedy’s replacement, the top two choices were Kavanaugh and Barrett. In terms of ideology; my guess is to Trump the two were similar ideologically; Kavanaugh was selected based on other factors.
Similarly, Biden will not be picking his nominee based on ideological factors (they will all be similarly liberal) – the choices will be on different factors.
That’s why I talk about law school. Its not ideology; but I do believe it is a significantly part of a judges worldview. And my opinion is having 8 of 9 Supreme Court judges be from Harvard or Yale is not good for the judiciary.
I’m not the only who sees this. Take James Clyburn:
““I’ve made it very clear that I feel very strongly about the need to have a diversity of experiences throughout government and the judicial system,†said Clyburn, D-Columbia, whose support for Childs was first reported by The New York Times. “It’s not just on the Supreme Court but on subordinate courts, as well.â€
…
“The fact that Childs, a Detroit native, did not attend an Ivy League law school, distinguishing her from most Supreme Court nominees, is partly the point, Clyburn said. Eight of the nine current justices either went to Harvard or Yale. One justice attended Notre Dame.
“I hear President Biden talk about being a public college graduate as opposed to an Ivy Leaguer,†Clyburn added. “That has some substance with him, and I would hope that would also have substance for those people who are doing the vetting and recommending as to who he ought to consider for the Supreme Court.—
Unfortunately, the candidate Clyburn is advocating (J Michelle Childs) is on the older side of the ideal age (48-55).
â€And my opinion is having 8 of 9 Supreme Court judges be from Harvard or Yale is not good for the judiciary.â€
Ivy League schooling has never impressed me. Life experiences, an officeholder’s integrity, and an unbiased filter for listening to the peoples’ voices is what appeals to me.
I’m not a fan of using race as a qualification for a job, but it happens. Politicians used to be worry about having more than one Jew on the bench.
People don’t appreciate how white the legal profession is. This is from the 2020 ABA profile:
White: 86%
African-American: 5%
Hispanic: 5%
Asian: 2%
Native American: 0.4%
Multi-racial: 2%
Women are 37%.
A SCOTUS that reflected the diversity of the legal bar would have 8 whites, one black Hispanic. Six men and three women.
Ideology, at least as the term is usually used, is less concerning to me that whether a justice sees his or her role as advocacy. There is an increasing trend to look for judges who will be advocates for one policy or another and I think that is damaging to the judiciary and to the country.
I also think it’s getting harder to find judges who don’t see their role as advocacy because of changes that have taken place in the practice of law over the law half century.
PD:
Your comment supports the point I was making about the very narrow field quite well. The reality is that once you get above the district level there just aren’t that many female black judges. It’s a self-perpetuating condition.