Lately I’ve been posting straight to my Facebook page (over there on the right – see it in the corner?), but this will be a slightly longer post, so here’s my not so triumphant return to the blog.
Despite the recent string of unanimous (or near unanimous) Supreme Court decisions, there is still a sense that this deeply divided Supreme Court is a retirement away from having the balance tilted in a more constitutionalist direction. Elizabeth Hydra, president of the laughably named Constitutional Accountability Center*, offered a genuine cri de coeur, pleading with Justice Kennedy to remain on the Court.
*A quick perusal of the CAC website tells you all you need to know about them. They are refreshingly honest about their core mission:
As an action center, CAC promotes our conviction that the Constitution is, in its most vital respects, a progressive document, written by revolutionaries and amended by those who prevailed in the most tumultuous social upheavals in our nation’s history – the Reconstruction Republicans after the Civil War, the Progressives and the Suffragettes in the early 20th Century, the Civil Rights and student movements in the 1950s and 1960s. Through Constitutional Progressives, a coalition of leaders, organizations and individuals, we seek to wrest the Constitution from tea partiers’ control and restore our Nation’s Charter as a document that unifies and inspires all Americans, rather than divides us across ideological lines.
Their “Redefining Federalism” page – or, as it should more accurately be titled, their “Fuck Federalism” page – betrays their utter unfamiliarity with the political thought of those who wrote the Constitution. But enough about them,
Right at the outset we know we’re not dealing with an honest person:
First among them is the utterly broken process of Supreme Court nominations under President Donald Trump and Senate Republican Leader Mitch McConnell, which leaves little doubt that any nominee to replace Justice Kennedy would be intent on demolishing the key pillars of his legacy.
The “broken process” she refers to is this completely batty system whereby a simple majority of Senators can confirm a judicial appointee – you know, the system created by those equally batty men who wrote the Constitution.
Hydra continues:
As longtime Court-watcher Linda Greenhouse recently observed, thanks to Trump and McConnell, the Court has been turned into an electoral prize.
I’m going to give you all a moment to collect yourselves, because if you’re like me, you just rolled on the floor in a fit of hysterical laughter. In the world occupied by Hydra and Greenhouse, until the election of Donald Trump to the presidency, the Court was this completely apolitical institution unaffected by electoral politics. No previous election even partially hinged on the matter of judicial appointments.
Which I am sure is a plausible idea, assuming your knowledge of American history dates no farther back than, say, 2016.
For those who hold fast to the ideal of the Court as an independent institution above the political fray — including Kennedy, the Court’s longest-serving Republican appointee, as well as Chief Justice John Roberts — that is the last place they want it to be.
This is a mere chuckle, but still delusional. I think Chief Justice Roberts is unfairly maligned in conservative circles – he’s generally been a very good and reliable presence – but his handling of the health care cases, as just one example, can only be explained by politics.
We saw the Supreme Court nomination process reach the nadir of politics beginning in February 2016. Less than two hours after Justice Antonin Scalia’s death, McConnell cravenly decided to hold his vacancy open for more than a year, refusing even to give US Appeals Court Judge Merrick Garland — President Obama’s eventual nominee to the Court — a hearing, much less a vote on the Senate floor. Though Garland had bipartisan support, McConnell likely did this in the hopes of taking the nomination from Obama and giving it to a Republican president the next year.
And here we get to the next round of delusional fantasy. Once again, Hydra basically ignores all of American political history to establish a fantasy world where the politicization of the courts didn’t occur until the big bad Republicans came along and changed everything. Nevermind the fact that the very policy the GOP pursued was one suggested by Obama’s own vice president once upon a time. Or that the very same man, along with Senator Ted Kennedy, is the the chief figure in the history of judicial polarization.
Senators Kennedy and Biden engaged in base calumny (both were “Catholics” and so should know what that means) in tearing down Robert Bork. Remember how Justice Bork would mean a return to segregated lunch counters and back alley abortions? Do you think that entire ordeal might have been a nastier and more poignant mark in the history of the Court’s politicization?
And it’s not like it started just there. How about King FDR I President Roosevelt’s court packing scheme? Does Hydra recall how a sitting US president wanted to pack the Court with a bunch of yes-men who would approve the president’s unconstitutional actions? A plan which was put on hold because sitting Supreme Court justices got the message, and then left anyway?
We could go back further. How about Roger Taney taking it upon himself to overrule decades of legal and constitutional Congressional action with regards to prohibiting slavery in the territories? Or even Chief Justice Marshall, refusing to recuse himself in a case in which was directly involved, and then rendering a decision which was very much a political decision in the way in which it was delivered?
Perhaps Elizabeth should crack open a history book, otherwise she can stop pretending that the politicization of the courts is a recent phenomenon.
Meanwhile, throughout the 2016 campaign, candidate Trump devised a series of litmus tests for whomever he was to nominate to the Court, which he promised would come from a list of names produced by the Heritage Foundation and Federalist Society, two conservative organizations. Trump plucked his first Supreme Court nominee, Neil Gorsuch, from that list. Today, Trump is expected to announce nominations to several lower-profile but immensely important judgeships on the federal courts of appeals, which will also likely include names from that list.
The nerve of that guy, doing what every single presidential candidate has ever done. I mean, it’s not like Hillary Clinton clearly defined who her judicial appointments would be and what issues would be paramount to them. Nope, no litmus tests there.
This is important because lower court nominees today can become Supreme Court nominees tomorrow, which means Trump’s litmus tests for his judges threaten key components of the priceless, though fragile body of law that Justice Kennedy has carefully built over the past three decades.
I love how this paragraph treats Justice Kennedy as though he were the only individual deciding case law over the past three decades. Sure, he’s been the tie-breaking vote and has had an oversized influence on American jurisprudence, but Hydra writes as though it would just be an affront to Kennedy’s legacy if lower court appointees did not share his, ummm, unique judicial philosophy.
Hydra goes on to lament the possibility of Kennedy’s handiwork in cases such as Casey and Obergfell being undone. The judicial merits (or lack thereof) of those decisions being put aside for the moment, if those represent Anthony Kennedy’s legacy to the Court, then for his sake, he should hope they are undone. Kennedy’s opinions in those cases read less like they were crafted by a seasoned constitutional expert and more like they were written by a college-aged emo kid for a philosophy paper.
With all that being said, it’s now greatly amusing to read this penultimate paragraph after today’s developments.
At this writing, several controversial issues are making their way before the Court, from voting rights to gun regulation. This month, in fact, two separate federal courts of appeal will hear challenges to President Trump’s revised Muslim travel ban — challenges that almost certainly will arrive before the Justices. In the years ahead, Kennedy’s influence over the nation’s future will be more compelling than ever.
Justice Kennedy: brave champion of civil rights. I wonder how he voted on that travel ban thing? Oooooh. Awkward. Well, he was only joined by eight other justices, so there’s still hope, right Elizabeth?
The Cranky Conservative 