William Rehnquist

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.

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).

44 Years Of Republican Supreme Court Majority Comes To An End With Death Of Justice Antonin Scalia!

The death of the most right wing Supreme Court Justice, Antonin Scalia, in modern American history, offers Barack Obama and the Democrats a real opportunity to transform the majority of the Supreme Court, which has been with a Republican appointed majority for the last 44 years!

With the appointment and confirmation of Justices William Rehnquist and Lewis F. Powell, Jr. by Richard Nixon in January 1972, the beginning of the fourth year of his Presidency, we have had a Republican appointed majority, and the Democrats have only had a total of four appointments to the Court, as compared to the nine that the Republicans have had.

With nearly a full year until the next Presidential inauguration, there is no excuse for the Republicans to filibuster or to dismiss an appointment without just cause, and the Republicans are playing a very dangerous game in so threatening, within hours after Scalia’s death.  Public opinion is likely to reverberate against them if they follow through and create the longest delay in a Court appointment being confirmed.

The all time record is the 125 days between when Woodrow Wilson nominated Louis Brandeis, the first Jewish member of the Court, until his confirmation in 1916.  The second longest delay was when Ronald Reagan nominated Robert Bork in 1987, and his rejection by the Senate after 114 days.

So to say it will take more than the 342 days when the next President is inaugurated to gain a ninth Supreme Court Justice is totally preposterous, and delays so many decisions, and basically cripples the ability of the Court to do its job, its constitutional duty.

Already, the Republicans have shown they do not believe in doing the government’s business in the House of Representatives and the Senate, so are they now going to do the same with the Supreme Court?

Is this the way for them to convince the nation to give them responsibility for control of both houses and the Presidency, and also the Court for the long term future?

Obviously, the answer is NO, so the chance for a Supreme Court of nine members might very well be resolved with Barack Obama appointing a perceived moderate to the Court, which will be hard for the Republicans to refuse to confirm!

Barack Obama is our President for another eleven months, and constitutionally, he has the right and the responsibility to choose a new Supreme Court Justice, no matter how the Republican Party feels about it!

The Schizoid Supreme Court: All Based On Moods Of John Roberts And Anthony Kennedy!

It is clear that the Roberts Supreme Court is a schizoid body, sometimes doing what is right, and sometimes going totally wrong!

So the Roberts Court upheld the Affordable Care Act; gay marriage; and environmental regulations now–all attacks on states rights in these areas.

But at the same time, they have opened up the political system to corruption by billionaires with recent decisions; have weakened the Voting Rights Act; and have damaged affirmative action, believing that civil rights no longer is a major problem, just as we realize the extent of racism that still exists in America, despite having an African American President!

It all comes down to the mood of Chief Justice John Roberts and Associate Justice Anthony Kennedy. as the votes of Antonin Scalia, Clarence Thomas, and Samuel Alito, are extremely predictable, based on their own lack of ethics in their business dealings, and their close association with the Koch Brothers, creating a conflict of interest.

If things were legitimate, Justices Scalia and Thomas, in particular, would be facing impeachment and removal from the Court, as they have demonstrated that they are the most obstructive Justices of the past century, only matched by Chief Justice William Rehnquist, but with an argument that they are more right wing than Rehnquist ever was!

The Dangers Of The Supreme Court Run Amuck In Favor Of Wealthy And Corporations!

The Supreme Court is totally out of control, with its new decision on having no limits on campaign spending by wealthy donors, added on to the Citizens United Case of 2010, and the limitation of voting rights in a 2013 decision.

Chief Justice John Roberts has solidified a five member GOP majority to destroy all attempts to prevent corporate and wealthy people from controlling the political system, an effort pursued from the time of Theodore Roosevelt a century ago through Senator John McCain and Senator Russ Feingold in the 1990s and early 2000s.

That is all for naught now, and shows the dangers of a runaway, reckless, right wing radical Court!

This is what made Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Franklin D. Roosevelt, and Barack Obama criticize Court power, along with progressive reformers including Senator Robert La Follette of Wisconsin, Senator George Norris of Nebraska, Senator Russ Feingold of Wisconsin, Senator Paul Wellstone of Minnesota, and Senator Bernie Sanders of Vermont!

This is the result of 13 Supreme Court nominees since 1960 by Republican Presidents, to only 8 by Democrats, and with two of those Democratic appointments (Arthur Goldberg by John F. Kennedy and Abe Fortas by Lyndon B. Johnson), only lasting three and four years respectively.

Of course, Republican appointments of Harry Blackmun by Richard Nixon; John Paul Stevens by Gerald Ford; Sandra Day O’Connor by Ronald Reagan; and David Souter by George H. W. Bush, turned out to be major surprises in their rulings, but we also ended up with some of the most reactionary and right wing radical appointments in all of American history with the appointments of William Rehnquist by Richard Nixon and the elevation of Rehnquist to Chief Justice by Ronald Reagan; Lewis Powell by Richard Nixon; Antonin Scalia by Ronald Reagan; Clarence Thomas by George H. W. Bush; and Samuel Alito by George W. Bush. The appointments of Chief Justice Warren Burger by Richard Nixon; Anthony Kennedy by Ronald Reagan; and Chief Justice John Roberts by George W. Bush, have been more of a mixed bag, sometimes good, and sometimes horrible in its effect on constitutional law!

Meanwhile, John F. Kennedy selected a mostly conservative Justice Byron White; Lyndon B Johnson selected Thurgood Marshall; Bill Clinton selected Ruth Bader Ginsburg and Stephen Breyer; and Barack Obama selected Sonia Sotomayor and Elena Kagan, but sadly, their influence in the last four of the five names listed, has been mostly in being the opposition, sometimes vehement in nature!

The effect on the future of American democracy is massive, with this right wing Court majority, and the only hope is the eventual retirement of Scalia and Kennedy, and hopefully, continuation of a Democratic Senate and President for the rest of the decade, so that the Court changes direction in the future!

Two Supreme Court Justices Prove To Be Disasters And Embarrassments: Clarence Thomas And Samuel Alito!

It is now clear that the second Supreme Court nominee choices of George H. W. Bush and his son, George W. Bush, have turned out to be disasters and embarrassments to the Court they serve on!

Clarence Thomas was appointed by the elder Bush, and went through a tumultuous Supreme Court nomination battle, centered on sexual harassment charges by Anita Hill, and his confirmation was the closest vote of a successful nominee in decades!

He has proceeded to be an embarrassment, showing bitterness and the desire for revenge, and sullying the memory of the first African American Justice, Thurgood Marshall, who he replaced on the Court in 1991.

And a beneficiary of affirmative action, he has now, just today, compared affirmative action to slavery and segregation, an absolutely crazy comparison!

This man is inappropriate in his behavior in so many ways, including NEVER asking a question during oral arguments, the only Justice in memory to have that unfortunate distinction!

And then there is Samuel Alito, the appointment of George W. Bush in 2005, who mouthed open opposition to Barack Obama’s criticism of the Citizens United Case in his State of the Union Address in 2010, embarrassing himself and the Court!

And Alito, today, mocked fellow Justice Ruth Bader Ginsberg with gestures, including rolling his eyes, shaking his head, and looking at the ceiling. And Alito apparently has a problem with the other women Justices, Sonia Sotomayor and Elena Kagan, showing disrespect for them in open Court. As Dana Milbank of the Washington Post said today, Alito displays “Middle School antics”.

And imagine, Alito could have been the Chief Justice if John Roberts had already begun testimony to replace Sandra Day O’Connor, but before he could, Chief Justice William Rehnquist died, and President Bush decided to switch Roberts to the Chief Justice position, and so Alito replaced O’Connor as an Associate Justice on the Court! Imagine Chief Justice Alito, the sour puss and nasty personality!

So the Bushes made major mistakes in selection of Thomas and Alito, and the Court is stuck with them for many years, beyond the retirement of another conservative, Antonin Scalia, who is more intelligent, and more charming, even if often obnoxious as well!

40 Years Of Roe V Wade: Abortion Controversy Remains Red Hot!

Forty years ago today, the Supreme Court in a 7-2 decision, declared the right of women to an abortion, with three Richard Nixon appointments to the Court–author of the decision Harry Blackmun, and Chief Justice Warren Burger and Associate Justice Lewis Powell—joining two Eisenhower appointees—Potter Stewart and William Brennan—one Johnson appointee, Thurgood Marshall—and one Roosevelt appointee, William O. Douglas—in the majority.

Only Associate Justice Byron White, appointed by Kennedy; and William Rehnquist, appointed by Nixon, were in the minority.

Forty years later, the pro life and pro choice movements are still locked in constant combat, but with public opinion polls showing 54 percent want abortion rights retained all of the time or most of the time, with 44 percent against. And 70 percent in a poll do not want to see Roe V Wade overturned.

But meanwhile, Republican state legislatures in the past two years have passed a total of over 130 laws restricting the rights of abortion, and curbing the number of abortion providers.

Four states have made it almost impossible for women to obtain an abortion—Mississippi, Arkansas, North Dakota, and South Dakota.

So the federal allowance for abortion may exist, but in the South and Great Plains areas of the nation, it is becoming nearly impossible for abortions to be obtained, no matter whether it is because of rape, incest, life of the mother, or just any other reason, whether seemingly justifiable or not.

Abortion is an emotional issue, and one that most people would say needs to remain legal and safe but also RARE, and should not be used as a method of birth control, or because of reckless personal behavior. It is not an issue that will disappear anytime soon, but for now, the odds of reversing Roe V. Wade on the national level are remote, as Barack Obama will not appoint a Supreme Court Justice who gives any hint of wishing to overturn what many call the most controversial decision of the latter half of the 20th century.

Conflict Between Presidents And Chief Justices Quite Common Historically

It is well known that President Barack Obama and Chief Justice John Roberts do not have a warm relationship, with Roberts chosen by George W. Bush, with Obama voting against his confirmation, and with the two men having totally different ideological views. Despite that, and the annoyance of Roberts over Obama’s condemnation of the Supreme Court for the Citizens United case of 2010, Roberts saved “ObamaCare” in June 2012, legitimizing it for the future, and gaining the anger of Republicans and conservatives. Who can say for sure how the relationship between Obama and Roberts will develop in the second term, and whether Roberts will surprise with more support of the administration than just the health care issue?

But the fact of their antagonism is not new in American history, as it is actually quite common that the Chief Justice is picked by a President of one ideological view, and will often clash with a future President of another party during his tenure on the Court.

The examples of such antagonism, far worse than the Obama-Roberts relationship, follow:

Thomas Jefferson and Chief Justice John Marshall (appointed by John Adams), on the Marbury V Madison case of 1803, dealing with Judicial Review. They were also distant cousins, who personally disliked each other.

Andrew Jackson and Chief Justice John Marshall (appointed by John Adams), on the removal of the Cherokee and other Indian Tribes after the Worcester V. Georgia and other similar cases in the 1830s.

Abraham Lincoln and Chief Justice Roger Taney (appointed by Andrew Jackson), over the Dred Scott V Sanford case in 1857, and the President’s use of war powers during the Civil War years until Taney’s death in 1864.

Franklin D. Roosevelt and Chief Justice Charles Evans Hughes (appointed by Herbert Hoover), over Supreme Court decisions during the New Deal years, and specifically FDR’s Court “Packing” Plan in 1937.

Richard Nixon and Chief Justice Earl Warren (appointed by Dwight D. Eisenhower), who Nixon had criticized in earlier years, and were rivals in California politics,and Warren trying to leave office under Lyndon B. Johnson, so Nixon would not replace him, but unable to do so due to controversy over Johnson’s nomination of Associate Justice Abe Fortas in 1968, leading to rejection, and Warren’s replacement, Warren Burger, being chosen by Nixon in 1969.

Bill Clinton and Chief Justice William Rehnquist (appointed by Ronald Reagan), who had major disagreements on policy, but Rehnquist conducted himself well at the Bill Clinton Impeachment Trial in 1999.

So the antagonism and rivalry of Presidents and Chief Justices is nothing new!

Roe V. Wade Almost 40 Years Later Still Debated, But Five Of Seven Justices In Majority Were Appointed By Republican Presidents Eisenhower And Nixon!

In the midst of the heated debate about abortion rights, rape, Todd Akin, Mitt Romney, and the Republican Party platform which bans ALL abortions, whether rape, incest, or life of the mother, something very significant has been ignored!

The Roe V. Wade case of January 22, 1973 was decided by a 7-2 vote, with FIVE of the seven Justices in the majority being appointed by Republican Presidents Dwight D. Eisenhower and Richard Nixon!

That was an era when Republicans could be in the mainstream, supporting voting rights legislation by vast majorities in Congress, but now 40-50 years later, leading the charge to do everything possible to repeal the legislation, or deny many categories of voters their basic human right to vote.

That was, also, a time of mainstream Republican Justices supporting a woman’s right to privacy with her own body, exactly the opposite of what is happening 40 years later in the Republican Party!

The Republican appointments who supported Roe V. Wade in 1973 were:

William Brennan, appointed by Eisehower
Potter Stewart, appointed by Eisenhower
Chief Justice Warren Burger, appointed by Nixon
Harry Blackmun, author of the decision, appointed by Nixon
Lewis Powell, appointed by Nixon

Two Democratic appointments, William O. Douglas (appointed by Franklin D. Roosevelt), and Thurgood Marshall (appointed by Lyndon B. Johnson), joined the five Republicans, with only one Democratic appointment (Byron White, appointed by John F. Kennedy), and one Republican, (William Rehnquist, appointed by Nixon) being in the minority.

How far the Republican Party has wandered from the mainstream of American politics over the past 40-50 years, and the only answer is a sound defeat of the right wing, and bringing the GOP back to the mainstream, or else they will become part of the dustbin of history, being replaced by a centrist party that resembles the proud history of the earlier Republican Party, which understood that an alliance with religion is poisonous to tolerance and the mainstream of American politics!

What Might Have Been: Chief Justice Samuel Alito!

In Jully 2005, shortly after Associate Justice Sandra Day O’Connor announced her retirement, President George W. Bush announced John Roberts as his choice as her replacement on the Supreme Court.

The hearings were scheduled for early September, but two days before the hearings began, Chief Justice William Rehnquist died, and overnight, Bush decided to switch Roberts to be the appointee for Chief Justice, and later selected Samuel Alito to replace O’Connor!

The course of history was changed dramatically by this, ever more so now after Chief Justice Roberts authored the majority opinion on the Affordable Care Act, better known as ObamaCare!

Samuel Alito has proved to be a right wing extremist on the Supreme Court, joining with Antonin Scalia and Clarence Thomas, and often called “Scalito” by critics. He also is the Justice who mouthed “not true” after the CItizens United Case decision, when President Obama, in the State of the Union speech a few days later, openly criticized that decision to the faces of the Supreme Court, while the other Justices, including Roberts, sat stone faced, which was the professional way to behave, but not for Alito!

The leader of the Court knows the Court is in his name, and that he must think of history, and Chief Justice Roberts knows that well, and has shown his statesmanship on this health care case, realizing no major decision of the Court since 1937 has repudiated a major social reform law passed by Congress.

Justice Alito is NOT a statesman, far from it, and rather is in many ways a disgrace–a narrow minded, hostile, nasty representative of the agenda of the Far Right, who if he had any ethics, would resign from the Court, but preceded by Scalia and Thomas, the two worst Justices of the past half century on the Court!