Sandra Day O’Connor

The Long Term Crisis Of Supreme Court Legitimacy Could Tear This Nation Apart Over Next Few Decades

The US Supreme Court is entering a period which could tear this nation apart over the next few decades.

Here we are in the 21st century, and yet, the Supreme Court could be taking us back to the late 19th century Gilded Age in its constitutional decisions. Now there is a solid five member conservative majority, with the confirmation and swearing in of Brett Kavanaugh, the most contentious nominee with the closest vote in the Senate since Stanley Matthews’ appointment by President James A. Garfield in 1881.

Matthews served nearly eight years on the Supreme Court, having been nominated by President Rutherford B. Hayes, but seen at the time as too much of a “crony” of the President, so his nomination was withdrawn, but resubmitted by President James A. Garfield in 1881, and confirmed by the closest margin in history, 24-23, but with Kavanaugh the second lowest ever vote 50-48. This was the only Supreme Court appointment of Garfield, who had only served four months, when he was shot and mortally wounded by an assassin, and died in September 1881.

The concern about fairness on the part of Brett Kavanaugh however was not the same as Stanley Matthews, who was the majority opinion author in a case involving discrimination against Chinese laundries and their owners in San Francisco, with the case being Yick Wo V. Hopkins, enforcing the Equal Protection Clause of the 14th Amendment. This was a step forward at a difficult time, in the year 1886, although the government had passed into law the Chinese Exclusion Act of 1882.

We could only hope for the kind of open mindedness on the part of Brett Kavanaugh, as occurred with Stanley Matthews’ authorship of this case, which gives him stature in Supreme Court history.

We have had Republican appointments in the past, who turned out to be surprises, including:

Earl Warren and William Brennan, appointed by Dwight D. Eisenhower

Harry Blackmun, appointed by Richard Nixon

John Paul Stevens, appointed by Gerald Ford

Sandra Day O’Connor and Anthony Kennedy, appointed by Ronald Reagan

David Souter, appointed by George H. W. Bush

It would be a miracle at this point if Brett Kavanaugh were to travel the same road.

In a nation becoming more minority over the next decades, and with young people and women and college educated people veering to the left, while the Supreme Court veers dramatically to the Far Right, the question is whether civil disorder is not in the making, creating a crisis atmosphere in the future decades, exactly what America’s enemies are hoping for.

A Way To Promote End Of Political Polarization: Nominate Merrick Garland A Justice Of The Supreme Court

Assuming that the nomination of Brett Kavanaugh to the Supreme Court fails to gain a majority of the US Senate, the future of the Court and its reputation remains at stake.

One way to resolve it is for both Republicans and Democrats to work toward the end of polarization, and call upon President Donald Trump to nominate Merrick Garland to the empty seat on the Supreme Court, three years after he was summarily dismissed and ignored by the Republicans, when President Barack Obama nominated him to replace Antonin Scalia, who died in February 2016.

Merrick Garland was seen by Obama as a compromise choice, whom the Republicans would accept, as he is seen as a moderate, and has a distinguished background as the Chief Judge of the US Court Of Appeals for the DC Circuit, the highest court next to the Supreme Court.

Garland is technically the “boss” of Brett Kavanaugh, and also was of Supreme Court Justice Neil Gorsuch, and both of them have always been very positive in their views of Garland.

Being in his mid 60s. Garland would serve far less than the theoretical 30 years that Gorsuch might serve, and that Kananaugh might serve if he was confirmed.

Garland is perfectly qualified to keep the Court balanced, and would likely replace Anthony Kennedy as the “swing vote” on the Court, and would prevent the kind of polarization represented by an extreme right wing choice for the Supreme Court, keeping it as four liberals, four conservatives, and Garland as the crucial vote, sometimes siding with one or the other side, as Anthony Kennedy did, and earlier, Sandra Day O’Connor did.

Why could not the two parties agree to a truce, to work toward cooperation, and return the US Senate to what it was under Lyndon B. Johnson and Ronald Reagan, when Senator Everett Dirksen worked with LBJ, and Speaker of the House Thomas “Tip” O’Neill did with Reagan, working across the aisle on many matters?

It is proper that Merrick Garland be put on the Court, as a distinguished, and accomplished man, who deserves, belatedly, three years late, to give his service to our nation’s highest Court.

Supreme Court Longevity An Issue, As Recent Justices Have Stayed Much Longer Than Average, Including Contested Nominee Clarence Thomas

In the midst of the controversy over Supreme Court nominee Brett Kavanaugh is the reality of how long he might serve.

There has been a trend whereby recent Supreme Court Justices serve much longer than historically traditional.

Right now, contested Supreme Court Justice Clarence Thomas, who was confirmed in 1991 despite strong testimony of Anita Hill, has served 27 years on the Court, and is already number 24 in longevity of service out of 113 members of the Court in American history. He will be number 17 in two years and number 13 in four years. In May 2028, he would break the all time record of 36 years and nearly 7 months of Justice William O. Douglas, and Thomas would be just about a month short of age 80, and can be seen as likely, if he stays healthy, to accomplish this goal.

If one just looks at the top fourth of all Supreme Court Justices in longevity, a total of 31 out of 113, all 24 years or more of service, we find the following recent Justices, all appointed since the 1950s, are on the list:

John Paul Stevens
William Brennan
William Rehnquist
Byron White
Anthony Kennedy
Antonin Scalia
Clarence Thomas
Ruth Bader Ginsburg
Sandra Day O’Connor
Harry Blackmun
Stephen Breyer
Thurgood Marshall

In the earlier history of the Supreme Court, the average length of service was about 15 years by comparison.

That is why the idea, proposed by this author two days ago, that a future Supreme Court Justice be limited to an 18 year term, allows for turnover, and prevents dominance by an ideological minority for decades, as now is threatened by Brett Kavanaugh, or another extreme right wing appointment by Donald Trump.

Supreme Court Justice Predictability Not So: Nine Cases From Felix Frankfurter To David Souter

As the hearings continue on the nomination of Circuit Court Judge Brett Kavanaugh to the Supreme Court, the question has arisen over whether Supreme Court Justices are predictable in their evolution on the Court.

The argument is that most Supreme Court Justices are “pegged” when they are considered for the Court, and do not disappoint the President and the party which nominated them for the Court.

But history actually tells us that there are quite a few exceptions to this perceived thought.

Felix Frankfurter (1939-1962), appointed by Franklin D. Roosevelt, migrated from an earlier liberal, almost radical view, to a clearly conservative view, disappointing many Democrats in the process.

Earl Warren (1953-1969), appointed Chief Justice by Republican Dwight D. Eisenhower, and thought to be a conservative oriented person, turned out in the mind of many Republicans “a flaming liberal”, totally surprising Eisenhower and many pleased Democrats and liberals.

William Brennan (1956-1990), appointed by Eisenhower, and a rare Catholic on the Court, and thought to be a conservative, turned out to be even more liberal in his jurisprudence, and lasted twice as long as Warren on the Supreme Court, stunning many conservatives and Republicans.

Byron White (1962-1993), appointed by John F. Kennedy, was thought to be a liberal, but was a consistent conservative in his years on the Court.

Harry Blackmun (1970-1994), appointed by Richard Nixon, started off as a conservative, along with his so called “Minnesota Twin” and colleague, Chief Justice Warren Burger, but veered sharply left more and more, diverging dramatically from Burger as the years went by, and honored by liberals as a great Supreme Court Justice.

John Paul Stevens (1975-2010), appointed by Gerald Ford, was thought to be a moderate conservative, but dramatically moved left in his jurisprudence, and remained on the Court for 35 years, third longest of any Justice in history, retiring at age 90, but still active at age 98 (the longest lived Justice ever), and still promoting liberal viewpoints.

Sandra Day O’Connor (1981-2006), appointed by Ronald Reagan as first woman on the Court, turned out to be far less conservative, veering toward the center, and seen as a balance on the Court, unpredictable during her tenure on the Court.

Anthony Kennedy (1988-2018), appointed by Reagan, and just retired, thought to be a hard line conservative, turned out to be the second “swing” vote with O’Connor, and then the true “swing” vote on the Court, joining the liberal side one third of the time.

David Souter (1990-2009), appointed by George H. W. Bush, was thought of as moving the Court to the Right, after William Brennan retired, but many Republicans and conservatives were severely disappointed in his unpredictability, and often his siding with the liberal view on many issues, more than one would have expected.

Notice, however, that seven of these nine cases, all but Frankfurter and White, were of Republican appointments that turned out to be much more “liberal” than one might have imagined, with only Frankfurter and White turning out to be more “conservative” than perceived at the time of their nominations to the Supreme Court.

Chief Justice John Roberts To Become The New Balance On The Future Supreme Court?

Chief Justice John Roberts has been on the Court for 13 years now, and he is generally perceived as a conservative.

But he has surprised some conservatives, as when he kept ObamaCare (the Affordable Care Act) alive in 2012.

Also, Roberts has often stated by the doctrine of “Stare Decisis”–to stand by things decided”–although he has not been consistent on this over the years.

The odds of Roberts siding with the liberals on the Court for the image of the Court named after him as Chief Justice, is a thin measure of what kind of balance he might present on the future Supreme Court.

It seems likely that on balance, he will be “number 5”, in the middle, but that middle will be much farther to the Right than Anthony Kennedy or Sandra Day O’Connor represented.

But then again, Justices have surprised their Republican Presidents who appointed them, as with Earl Warren and William Brennan under Dwight D. Eisenhower; Harry Blackmun under Richard Nixon; John Paul Stevens under Gerald Ford; O’Connor and Kennedy under Ronald Reagan; and David Souter under George H. W. Bush.

The best estimate is that no one should count on John Roberts avoiding “his” Court from being regarded as the most right wing, conservative Court since the time of Warren G. Harding. Calvin Coolidge, and Herbert Hoover nine decades ago, before the Great Depression and New Deal began the transformation of constitutional law.

Utah Senator Mike Lee Seems To Have An Edge For Supreme Court Nomination

On June 28, this blogger suggested that Utah Senator Mike Lee was a likely potential possibility for the Supreme Court nominee to replace Justice Anthony Kennedy.

He would be a rarity, a sitting United States Senator, chosen for the Supreme Court.

There is no requirement that a sitting Federal Court judge must be chosen, although that has become the tradition since Governor Earl Warren of California was chosen to be Chief Justice by President Dwight D. Eisenhower in 1953, with only Sandra Day O’Connor, who served in the Arizona State Senate, and chosen by Ronald Reagan in 1981, having any elective experience since then.

As stated on June 28, we had Senators earlier, including most impressively, Hugo Black, who had done good deeds on the Supreme Court.

So the belief that Mike Lee has the advantage comes to the forefront again. It was announced that Lee had been interviewed for the position, so he is on the short list.

Lee is 47, which from the viewpoint of Donald Trump and conservatives, is ideal, meaning a 35 year term on the Supreme Court under normal circumstances.

Lee is a sometimes critic of Trump, who did not back him, which makes him seem independent of any influence by Trump if Lee was on the Court.

Lee is pro life, which would make it hard for Susan Collins and Lisa Murkowski to support him, but neither is needed as long as some Red State Democrats—Joe Manchin, Joe Donnelly, Heidi Heitkamp—all who voted for Neil Gorsuch last year—support him. And both Collins and Murkowski ended up voting for Gorsuch, so their protestations seem weak.

It would be difficult for either Collins or Murkowski to vote against their own party and Senate colleague in the end, as after all, both voted for Jeff Sessions as Attorney General, and Collins even gave a strong endorsement presentation before the Senate Judiciary Committee for his nomination to the Justice Department, despite his outrageous racism.

So I suggest that Lee might be the choice of Trump, and more likely to sail through confirmation, and with a likely 53-46 vote (without John McCain voting), and possibly more Red State Democrats justifying the vote for their “Senate colleague”!

Party loyalty and Senatorial “courtesy” give Mike Lee the advantage, at least in theory, but we shall see!

The End Of The Supreme Court Term: Any Retirements Coming?

This is the last week of the present Supreme Court session, and Court watchers are wondering if we are about to see a sharp swing to the Right, with the potential retirement of Justice Anthony Kennedy, appointed by Republican President Ronald Reagan nearly 30 years ago, and a crucial swing vote ever since on the Court.

Kennedy has been on the conservative side about two thirds of the time, and on the liberal side one third of the time, and without him, for instance, there would have been no advancements on gay rights and gay marriage, as he was the crucial fifth vote.

His vote this week may decide whether the Muslim ban of Donald Trump is upheld, or prevented, as it has been by several circuit courts around the nation.

Kennedy has been the unpredictable vote all by himself in the past decade, since Sandra Day O’Connor left the court at the end of 2005.

For a decade before 2005, it was said the Court was the “O’Connor-Kennedy Court”, and now for the past 12 years, it has been the “Kennedy” Court, more than the Roberts Court, as traditionally, the Court is described by the name of its Chief Justice.

Since Kennedy will be turning 81 in one month, and is the second oldest member of the Court, after Ruth Bader Ginsburg, who is 84, but has made clear she is going nowhere, and hopes to stay on the Court until 2021, so that hopefully a future Democratic President in 2021 can choose her successor.

So if Kennedy does retire this week, it will mark a sharp move to the Right, which will undermine constitutional law for the next generation!

Neil Gorsuch On Supreme Court A Fateful Turn To The Right, Unless He Surprises, As Other Republican Appointments In Past Have Done

Seven Republican appointments to the Supreme Court since 1953 turned out to be less conservative than expected, so the question that arises, as Neil Gorsuch, appointed by Donald Trump, becomes the 113th Supreme Court Justice in American history is, will Gorsuch follow that lead?

At this point, it seems highly unlikely, but there is no way to know how a person on the Court, who potentially could be there for 35 years, until 2052, will react as cases come before him. If he has an open mind, he could surprise us, as history records for appointees of Presidents Dwight D. Eisenhower, Richard Nixon, Gerald Ford, Ronald Reagan, and George H. W. Bush prove.

Chief Justice Earl Warren and Associate Justice William Brennan, appointments of Eisenhower, thought to be conservatives, turned out to be path breaking liberals on the Court.

Associate Justice Harry Blackmun, appointed by Nixon, proved to be the same, as did John Paul Stevens, appointed by Ford.

Associate Justices Sandra Day O’Connor and Anthony Kennedy, chosen by Reagan, proved to be the swing vote,often siding with the liberal side of the Court, despite their generally conservative bent.

And David Souter, appointed by the first Bush, also proved to be a surprise on his vote much of the time.

So we will see over the next few years if Neil Gorsuch surprises.

The Evolution Of Women In American Politics: 1916-2016 And Beyond!

In 1916, exactly a century ago, the first woman, a Republican, Jeannette Rankin of Montana, was elected to the House of Representatives.

In 1932, Hattie Caraway of Arkansas, a Democrat, became the first woman to be elected to the United States Senate.

In 1933, Frances Perkins of New York, a Democrat, became the first woman to be a member of the President’s cabinet, Secretary of Labor under Franklin D. Roosevelt.

In 1964, Senator Margaret Chase Smith of Maine, a Republican, became the first woman to run for President.

In 1972, Congresswoman Shirley Chisholm of New York, a Democrat, became the first black woman to run for President.

In 1981, Sandra Day O’Connor of Arizona, a Republican, became the first woman appointed to the US Supreme Court.

In 1984, Congresswoman Geraldine Ferraro of New York, a Democrat, became the first woman Vice Presidential nominee of a major party.

In 2016, Hillary Clinton became the first woman chosen as the Presidential nominee of a major party, and will become the first woman elected President in the next 24 hours!

And the fight for women’s right to vote began in 1848 at the Seneca Falls Convention, and only in 1920, did women gain the right to vote by the 19th Amendment to the Constitution.

So Hillary Clinton will be our president when the centennial of women suffrage comes about in 2020!

And this all began with Susan B. Anthony, arrested for trying to vote in 1872!

Barack Obama’s Supreme Court Solution: Choose Former Republican Supreme Court Justice Sandra Day O’Connor On One Year Term!

The Republican majority in the US Senate have made clear that they will not hold hearings, or in any fashion, consider the nomination of anyone selected by President Barack Obama to replace Associate Justice Antonin Scalia on the Supreme Court, leaving the membership at eight for over 400 days, until a new President has been inaugurated and chosen a successor.

There is not much that can be done about this in reality, except that it should convince those who support the Democrats to come out in droves and insure that Hillary Clinton or Bernie Sanders is elected President.

It is, certainly, another issue in the campaign for the national elections, and since Republicans are split around Donald Trump, it gives an advantage to the Democrats, if only they can convince voters not to sit home, when either Hillary or Bernie lose the Presidential nomination to the other over the next few months.

But Barack Obama could put the Republicans in a box if he were to nominate a former member of the Supreme Court, chosen by Ronald Reagan, to return to her seat which she gave up ten years ago, not because of her own health, but because her husband had Alzeheimers, and she wanted to take care of him.

Were it not for that, O’Connor, with 25 years on the Court, could be close to the all time record of service of Justice William O. Douglas, who served 36 years from 1939-1975.  Her age is not an issue, as Justice John Paul Stevens was on the Court until age 90 and Justice Oliver Wendell Holmes a few months older but still age 90.

Yes, O’Connor will be 86, but she would be capable of serving for a year, and her record shows she would be a balancing influence, much like Justice Anthony Kennedy, not a certainty to vote with conservatives or with liberals on the Court.

This way, she would be able to help the Court do its work, serve her country, and leave after a new President made his or her appointment shortly after inauguration.

One can be sure that O’Connor would do her duty for her country, as she is highly honored already.  And Associate Justice Charles Evans Hughes came back to the Court as Chief Justice 14 years after leaving the Court in 1916.

So the best solution is for Obama to request that O’Connor agree to return, and it will put the Republicans in an awkward situation if they refuse to allow it!