Supreme Court Justices

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.

The Record And Views Of Supreme Court Nominee Brett Kavanaugh Could Determine Constitutional Law To 2050!

Tomorrow, the contentious hearings on the nomination of Supreme Court nominee Brett Kavanaugh will begin in the Senate Judiciary Committee.

These will be the most controversial set of hearings since 1987 and Robert Bork, and 1991, with Clarence Thomas.

On both of those occasions, the Democrats controlled the Senate, and Bork was rejected by a vote of 58-42, while Thomas was confirmed by a vote of 52-48.

The effect of Justice Clarence Thomas for the past 27 years has been profound, with many future potential Circuit Court or Supreme Court candidates having clerked for him.

Thomas has been trying to take us back to the Articles of Confederation in many ways, but also admiring Presidential power at the same time.

This is the danger of Brett Kavanaugh, that he would take America domestically back to the Gilded Age, wiping out the New Deal, Great Society, and everything Barack Obama changed.

He comes across on the surface as a pleasant, nice man, but it is all very misleading.

This is a man who worked for Ken Starr in the impeachment of Bill Clinton, and now Kavanaugh has changed his view of Presidential power 180 degrees.

This is a man who worked in the White House for George W. Bush, and helped to plan the idea of an anti gay marriage amendment, that was part of the campaign of Bush in 2004. And now, Donald Trump has used executive privilege to prevent 100,000 documents from Kavanaugh’s time in the Bush White House from being made available, which is another controversy now created, as why should the Senate be unable to examine all pertinent material about a nominee?

This is a man who worked to deny September 11 victims the ability to sue for damages, limiting unsuccessfully that intent.

This is a man who in his Circuit Court decisions has come out against abortion rights, against ObamaCare, against the Consumer Financial Protection Bureau, against labor union rights, and willing to support limitations on voting rights.

This is a man who might be able to vote on whether Donald Trump can be indicted or prosecuted, and should recuse himself on any such matters as a conflict of interest, but likely will not do so. Justice William Rehnquist, when new on the Court as an Associate Justice, recused himself from the US Vs. Richard Nixon case in 1974 (after which Richard Nixon resigned), because Rehnquist had worked in the Justice Department under Nixon. So that famous and significant case was 8-0, not 9-0 or 8-1, and at the least, a Justice Kavanaugh should recuse himself from any case involving possible legal action against Donald Trump.

Kavanaugh could affect future decisions on campaign finance, climate change, election gerrymandering, and travel bans, and regulation of guns.

He would also create a right wing conservative Court, unlike any since 85 years ago.

And being only 53, he could be on the Supreme Court until 2050, when he would reach 85 years of age.

This would be the most long range effect of Donald Trump, no matter how much longer he remains in the Presidency, along with the 26 and more Circuit Court confirmations already accomplished by Senate Majority Leader Mitch McConnell, along with Supreme Court Justice Neil Gorsuch.

The Democrats’ only hope would be IF all 49 Democrats hold fast (highly unlikely); Susan Collins and Lisa Murkowksi (both pro choice on abortion) abandoning the party ties on this vote (highly unlikely); and the person who replaces John McCain in the Senate (maybe Cindy McCain) joining the two women Republican Senators in voting against Kavanaugh (highly unlikely).

Democratic Party Historical Accomplishments

The Democratic Party has been criticized for the fact that in its 188 year history, it was the party that promoted slavery, segregation, and lynching, being dominated for a long time by its ugly Southern membership.

This cannot be denied, but it is the Democratic Party which has also, in the last century of history, had many historical accomplishments.

Among these are:

First Catholic nominee for President–Alfred E. Smith 1928
First Catholic President elected–John F. Kennedy 1960
First Catholic Vice President elected–Joe Biden 2008
First Jewish nominee for Vice President–Joseph Lieberman 2000
First Jewish Presidential candidate as serious contender–Bernie Sanders 2016
First African American President–Barack Obama 2008
First Woman nominated for Vice President–Geraldine Ferraro 1984
First African American Presidential Contender–Shirley Chisholm 1972
First Woman nominee for President–Hillary Clinton 2016
First woman Secretary of State—Madeleine Albright under Bill Clinton
First Southerner elected President since 1848–Jimmy Carter 1976
Youngest elected President–John F. Kennedy 1960
President who gave us Social Security–Franklin D. Roosevelt 1935
President who gave us Medicare and Medicaid–Lyndon B. Johnson 1965-1966
One Term President who advanced Environmental Causes the most in history–Jimmy Carter 1977-1981
President who gave us ObamaCare–Barack Obama 2010
President who advanced Civil Rights—John F. Kennedy and Lyndon B. Johnson 1960s
President to appoint first Jewish Supreme Court Justice—Woodrow Wilson 1916 (Louis Brandeis)
President to appoint first woman Jewish Supreme Court Justice—Bill Clinton 1993 (Ruth Bader Ginsburg)
President to appoint first African American Supreme Court Justice–Lyndon B. Johnson 1967 (Thurgood Marshall)
President to appoint first Hispanic-Latino Supreme Court Justice—Barack Obama 2009 (Sonia Sotomayor)
President who promoted Containment Foreign Policy with the Soviet Union—Harry Truman
President who promoted concept of international cooperation—Woodrow Wilson and Franklin D. Roosevelt
First Woman Speaker Of The House of Representatives–Nancy Pelosi 2007
Most accomplished Congresses, Democratic controlled—-63rd and 64th (1913-1917) under Woodrow Wilson; 73rd and 74th (1933-1937) under Franklin D. Roosevelt; 89th Congress (1965-1967) under Lyndon B. Johnson; 111th Congress (2009-2011) under Barack Obama
Great Supreme Court Justices appointed by Democratic Presidents—Louis Brandeis 1916 by Woodrow Wilson; Hugo Black 1937 by Franklin D. Roosevelt; Felix Frankfurter 1939 by Franklin D. Roosevelt; William O. Douglas 1939 by Franklin D. Roosevelt; Thurgood Marshall 1967 by Lyndon B. Johnson; Ruth Bader Ginsburg 1993 by Bill Clinton; Stephen Breyer 1994 by Bill Clinton

Evan Bayh Guarantees Indiana Will Go To The Democratic Presidential Nominee, Hillary Clinton!

Former Indiana Senator Evan Byah, the son of former Senator Birch Bayh, chose not to run for reelection in 2010 after 12 years in the Senate.

But now, six years later, he has decided to come back and run for his seat, and will likely take it away from whomever the Republicans run to succeed retiring Senator Dan Coats, who also gave up his seat and then came back to run again for it in 2010.

We can chalk this up as a certain Democratic gain toward their hoped for majority in the US Senate, which will be crucial in so many ways, including the confirmation of Supreme Court Justices.

Bayh is a moderate centrist Democrat, the kind who can help Hillary Clinton win Indiana, which Barack Obama won in 2008 but lost in 2012.

So at least one “Red” state can be considered a gain for the Democrats, insuring even more that Hillary will be elected the 45th President of the United States in November.

The Changing Supreme Court In 2017: A Move To The Left That Will Last To The 2040s Or Beyond!

With the reality that Democrat Hillary Clinton has a clear lead for the Electoral College, the likelihood of a liberal majority Supreme Court seems more certain in 2017 and beyond.

News that Justice Clarence Thomas might retire at age 68 in the next year is encouraging in that regard, but even if he does not, as his wife has just contended, the likelihood is of FOUR appointments to the Court outside of Thomas, with two of them (Antonin Scalia dead and Anthony Kennedy retiring) being a movement to the left, making at the least a 6-3 Court by 2020. If Thomas also leaves, it would be a 7-2 Court, which would have a long range effect to the 2040s or beyond!

The Supreme Court has had a Republican and conservative majority for 44 years, since 1972, so it is about time to right the balance and make for a revival of the Chief Justice Earl Warren Court, which had an effect for 16 years, and continued to influence, if not control the Court, with the extended service of Justice William Brennan and Justice Thurgood Marshall.

Fortunately, Justice Harry Blackmun, Justice John Paul Stevens, and Justice David Souter, all appointed by Republican Presidents, often joined the few liberals left on the Court, and prevented the Court from going even further Right than it did in those 44 years.

But there is a desperate need for a tilt to the left on so many issues, so that is the most important reason for the election of Hillary Clinton to the White House in November!

Historic Moment To Revel In! First Female Presidential Candidate Of A Major American Political Party, And Of Course, A Democrat!

It has finally happened!

Hillary Clinton is the Democratic Presidential nominee, the first woman to gain that opportunity on a major party line!

But remember that it is the Democratic Party which gave us the first Catholic President, John F. Kennedy, and the first African American President, Barack Obama!

Also, it was the Democratic Party that gave us the first woman Vice Presidential nominee, Congresswoman Geraldine Ferraro of New York and the first Jewish Vice Presidential nominee, Joe Lieberman of Connecticut, along with the first Catholic Vice President, Joe Biden.

It was a Democratic President, Woodrow Wilson, who gave us the first Jewish Supreme Court Justice, Louis Brandeis.

The Democratic Party is the party of equal opportunity, including three Jews presently on the Court (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan); three women presently on the Court (Ginsburg, Kagan, and Sonia Sotomayor) ; and the first Latina Supreme Court Justice (Sotomayor).

And it was great today to see the first African American President, Barack Obama, wholeheartedly endorsing the first woman Presidential nominee, Hillary Clinton!

Speculation About Trump As Presidential Nominee: The Kind Of People He Would Select For Vice President And The Supreme Court!

Horror stories are coming out about who Donald Trump might choose to be his running mate for Vice President, if he becomes the Republican Presidential nominee in this election year.

It may all be scare propaganda, but it is enough to make one wish to vomit!

Imagine Florida Governor Rick Scott, one of the most despicable, and corrupt Governors in America, a heartbeat away!

Imagine former Alaska Governor Sarah Palin again a possible heartbeat away, as she would have been had John McCain won the Presidency in 2008.

Imagine former Republican Presidential candidate Carly Fiorina, the failed CEO of Hewlett Packard, who came across as an obnoxious and uncaring candidate, being a heartbeat away when she ran a corporation into the ground.

And Trump told Pat Robertson, the aging and demented evangelical leader, that he wants more Supreme Court Justices like Clarence Thomas, who has not uttered a word on the Court in the past ten years, and has had major conflicts of interest in many cases, but never recuses himself, making him an extremely corrupt and incompetent Supreme Court Justice!

The Age Issue In The Presidential Campaign

This blogger has discussed before the reality that we are likely to have the oldest President in American history being elected in the Presidential Election of 2016.

Only Ronald Reagan and Dwight D. Eisenhower were past 70 when President, with Ike only three months beyond 70 when he finished his time in the White House, while Reagan was just weeks short of 70 when elected, and almost 78 when he left office after two terms.  Of course, Reagan showed signs of mental decline in his second term, as his son Ron Jr testifies to, and there were many hints that there was concern of his staff and his wife about his ability to deal with the responsibilities, and efforts to “protect” and “shelter” him.

The point is that there is no question that anyone beyond the age of 70 is more likely to have a health crisis, such as a heart attack, a stroke, Alzheimer’s, or cancer, than someone under the age of 70.

Yes, we live in a time when many people continue to work full time, including Supreme Court Justices, US Senators and Congressmen, corporate leaders, media figures, actors and musicians, and average Americans.

And yes, many “senior citizens” work part time, some because they need to in an economic sense, and others because they wish to keep active and engaged.

No one is saying that people over 70 should be “farmed out to pasture”!  But the pressures of the Presidency are greater than any other job, and affect all of us in the country, unlike any other job.  And that makes it ever more important that the best possible Vice Presidential candidates are chosen, and that he or she be substantially younger than an elderly President, since the odds of a Presidential succession during a term of office is far greater statistically.

Also, we have not had a Presidential succession in 41 years since Richard Nixon resigned, and 52 years since a President died in office (John F. Kennedy), so we are fighting against the tides of history, and more so with a President over 70!

Age Limits In Congress Arise As Issue As John McCain Plans For Another Term In Senate In His 80s!

As Senator John McCain of Arizona announced that he will seek another six year term in the US Senate, which would bring him into his mid 80s in that chamber, the question arises of some type of age limits that needs, desperately, somehow, to be applied in the future.

The number of octogenarians who have served in the Senate is, by research, somewhere in the mid 30s, out of a total number of Senators since 1789 numbering, at this point, 1,973 in total!

So one might say that having about 1.6 percent of all US Senators lifetime in their 80s or 90s is not a big deal, but it actually is, as level of health and well being, while fine for some, realistically, is not overall good statistically for people in their 80s, with dementia a particular problem and early death a statistical likelihood. Really, when one has reached the ninth or tenth decade of life, no matter how good in performance one has been, and no matter how much one feels he or she can do and contribute, it is, simply, time to allow someone new and younger to serve a Congressional district or state!

No one is indispensable, and that should include Supreme Court Justices as well, as the likelihood of excellence at such an advanced age is highly unlikely, but often, it is just stubbornness and ego that keeps these government leaders in their positions.

Harry Reid of Nevada and Barbara Mikulski of Maryland and Barbara Boxer of California realized this, and on the other hand, Diane Feinstein of California did not, Chuck Grassley of Iowa did not, Orrin Hatch of Utah did not, Richard Shelby of Alabama did not, James Inhofe did not,and now John McCain has not. Additionally, Pat Roberts of Kansas, Thad Cochran of Mississippi, Patrick Leahy of Vermont, and Lamar Alexander of Tennessee will reach 80 in the next few years, and yet, it is really time to go, gentlemen!

Do we really want Senators possibly reaching their 90s in office, as Strom Thurmond of South Carolina, Theodore Green of Rhode Island, Robert Byrd of West Virginia, and Carl Hayden of Arizona did, reaching the ages of 100, 93, 92, and 91 in office?

Enough is enough, and age 80 should be the limit with no exceptions, and therefore, one would not be permitted to run for office past age 74 at the time of the election, so that they leave during the year they reach age 80!

in other words, we need a “youth movement” in the United States Senate, as well as in the House of Representatives, so it is time for such luminaries as Michigan Congressman John Conyers and New York Congressman Charles Rangel to stay goodbye at the end of their present term of Congress!

Republican Presidents And Ten Exceptional Supreme Court Appointments Since 1900!

Republican Presidents have contributed many outstanding Supreme Court Justice from the time of Theodore Roosevelt through the Presidency of George H. W. Bush, from 1902 through 1990.

Ten Justices can be seen as having a very positive impact on the Court, often surprising the Republican Presidents who appointed them, as many could have been appointed by Democratic Presidents in retrospect!

These Justices include:

Oliver Wendell Holmes, appointed by Theodore Roosevelt, and serving from 1902-1932.

Harlan Fiske Stone, appointed by Calvin Coolidge, and serving as Associate Justice from 1925-1941, and then elevated to Chief Justice by Franklin D. Roosevelt from 1941-1946.

Charles Evans Hughes, originally appointed by William Howard Taft, and serving as Associate Justice from 1910-1916, resigning to run as the Republican Presidential nominee in 1916, and then, reappointed, now as Chief Justice by Herbert Hoover, and serving from 1930-1941.

Benjamin Cardozo, appointed by Herbert Hoover, and serving from 1932-1938.

Earl Warren, appointed by Dwight D. Eisenhower, and serving as Chief Justice from 1953-1969.

William Brennan, appointed by Dwight D. Eisenhower, and serving from 1956-1990.

Harry Blackmun, appointed by Richard Nixon, and serving from 1970-1994.

John Paul Stevens, appointed by Gerald Ford, and serving from 1975-2010.

Sandra Day O’Connor, appointed by Ronald Reagan, and serving from 1981-2006.

David Souter, appointed by George H. W. Bush, and serving from 1990-2009.

Any scholarly listing of great Supreme Court Justices would certainly list Holmes, Warren, Brennan, Blackmun, and possibly Stevens in the top ten Supreme Court Justices of all time, a total of 112 Justices in the history of the Supreme Court up to now. And Stone, Hughes, Cardozo, O’Connor, and Souter would all rank in the next ten, making this list part of the top 20 out of the entire list. And Stone, Hughes and Warren served as Chief Justices, arguably the three best Chief Justices, following the greatest Chief Justice of all time, Chief Justice John Marshall (1801-1835)!

All of this above list, except Cardozo, served for a long time, from a low of 16 years for Warren, up to 35 for Stevens, and even Cardozo is rated as being an outstanding Justice, despite his short period on the Court.

So the Republican Party and Presidents, often by misjudgment or error, selected many of the greatest Supreme Court Justices in its history in the 20th century!