With the confirmation of Ketanji Brown Jackson to the Supreme Court, we have a first for the Court:
Four women—Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson.
Two African Americans—Clarence Thomas and Ketanji Brown Jackson
One Hispanic Justice—Sonia Sotomayor
Considering that the Supreme Court has had 108 white males out of a previous 115 appointments, this is a massive change, well needed and timely!
President Barack Obama’s greatest legislative accomplishment was the hard fought battle to expand health care to tens of millions of Americans, what is called “ObamaCare”, but officially termed the Affordable Care Act of 2010.
The Republican Party fought it bitterly for the past eleven years, but having no alternative, and now for the third time, the Supreme Court has upheld the law, and it is now institutionalized, finally!
By a 7-2 vote, with four Republican appointed Justices, and two of them Trump appointees in the majority, the legislation is now settled.
Who would have thought that Clarence Thomas, Amy Coney Barrett, and Brett Kavanaugh would join the majority, along with Chief Justice John Roberts, who had saved the legislation in the past from being destroyed?
This is absolutely amazing, but shows how unpredictable the Supreme Court is as an institution!
Friday, December 11, 2020, will go down in history as a glorious day for Democracy, the Rule of Law, and reaffirming the Supreme Court for, once again, having had the courage to say “NO!” to a President who thought he was unaccountable!
In 1974, in US V Richard Nixon, the Supreme Court ordered that the Watergate Tapes be handed over to the Special Prosecutior, by a 8-0 decision, leading to the resignation of the President. Three of the votes against Nixon came from Justices he had appointed.
In 1997, in Clinton V Jones, the Supreme Court ordered that the President testify in a civil trial dealing with sexual harassment, leading to his impeachment for lying before a grand jury. The vote was unanimous, with even the two Clinton appointees in the majority!
And now in 2020, the Supreme Court unanimously, with even the three Justices appointed by Donald Trump, throwing out the frivolous case backed by 17 state Attorneys General and 126 House Republicans (two thirds of the party in that chamber), that wished to throw out the votes of the four swing states that went to Joe Biden, insuring him of victory in the Presidential Election of 2020!
The Supreme Court has its critics, and has some members whose ethics and morals are suspect, but the Supreme Court proved its mettle in a crisis moment, and once again limited Presidential power. It prevented a dictatorship from being established by the most corrupt President in American history who, even with a potential pardon by himself (which would be illegal) or by Mike Pence, will pay the price for his violations of the law in New York State, and face likely conviction and a prison sentence!
It seems likely that the Supreme Court might see massive change in the next Presidential term.
The automatic thought is that of course, the odds of Ruth Bader Ginsburg and Stephen Breyer leaving by one method or another, either death or retirement, seems likely as they are now 87 and 82 respectively.
If this happens with Joe Biden as President, the seats will remain in the liberal camp, so the news of Ginsburg again in the hospital, but supposedly recovering well, makes one’s heart skip a beat.
The thought of another Donald Trump appointment before the election is a horrible thought, but likely would happen if she were to leave the Supreme Court in the months before the election.
But beyond Ginsburg and Breyer, there are four other potential changes that could occur.
Both Clarence Thomas (age 72) and Samuel Alito (age 70) have been rumored to be thinking of leaving the Court, but no sign they would leave right now. But if they did in 2021 or after, with Joe Biden in office, these two most reliably conservative members would be likely replaced by nominees more to the left in their constitutional views.
Additionally, it is well known that Sonia Sotomayor (age 66) has a strong case of diabetes, and there is some speculation she might leave for health reasons at some point.
Finally, Chief Justice John Roberts (age 65) has had seizure issues, and could have died when he collapsed in 2007 on a deck while fishing, but fortunately did not fall into the water with no one nearby, and was instead found after the event. But he now has had a concussion, and one can wonder if it is related to his seizure issues, for which he takes medication. So it is possible to imagine him leaving the Court at some point.
So with the uncertainties of life, the six longest serving members of the Court could end up leaving the Court sometime between now and 2025. This would affect the balance of the Court on many cases that will come up in the future.
Speaker of the House Nancy Pelosi is assured a ranking as one of the all time greatest Speakers of the House, as well as the most powerful woman in American history.
She will rank in the category of Sam Rayburn, Thomas “Tip” O’Neill, Henry Clay, John W. McCormack, Nicholas Longworth, Champ Clark, Thomas Reed, Thomas Foley, James K. Polk, and Joseph Cannon. She is already 11th longest serving, and if she remains as Speaker through 2022, her planned date for retirement, she will be 5th longest serving, only behind Sam Rayburn, Henry Clay, Thomas “Tip” O’Neill, and John W. McCormack.
At the age of 79, with her birthday being March 26, she will become the oldest Speaker in American history on February 5, 2020, when she surpasses Sam Rayburn, who died 51 days before his 80th birthday. So she will reach 80 in March, very alert, competent, and totally in charge, and President Donald Trump is very much afraid of her, like he has never been of any other woman.
Understand that Nancy Pelosi is the most powerful woman in American history in her position, two heartbeats away from the Presidency. The highest ranking women otherwise have been multiple Secretaries of State–Madeleine Albright, Condoleezza Rice, and Hillary Clinton, all four heartbeats away from the Presidency. There has also been four Supreme Court Justices—Sandra Day O’Connor, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Additionally, there were two prospective Vice Presidents–Geraldine Ferraro and Sarah Palin. But that is the list, a short list, and only Nancy Pelosi has reached the pinnacle of power, and at a time of a challenge of a corrupt President, who would love to have absolute power, but has been stopped dead in his tracks by the woman from San Francisco!
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 controversy over Supreme Court nominee Brett Kavanaugh is a time to consider modifying the Judiciary Act of 1789, and end lifetime terms, and change to a maximum of 18 years on the Court for any future Supreme Court Justice.
It would insure in the future that we would have two Supreme Court appointments in any Presidential term, with the limit insuring turnover, rather than locking in a one sided Supreme Court, which can distort constitutional law and interpretation in a detrimental fashion.
Right now, in 2018, we have the danger of locking in a five member right wing Court that could last for 20-30 years, and the Court should, ideally, be a balanced Court, with some liberals, some moderates, and some conservatives, which normally was the way it was most of our history, but now seems a distant dream.
While there is an argument for longer terms, based on specific Justices being considered significant and admired by many, it still makes sense that we have a maximum of 18 years on the Court, and that way, the likelihood of having Justices at advanced ages, in the late 70s and early 80s, is much less likely to occur.
And one must realize that since most Justices come in modern times from the Circuit Courts, it means the average Justice would have a long judicial career, and if coming from an executive or legislative branch background, rare but has occurred in the past, that a Justice’s total career in public service will have been a long one.
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.
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).
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