Monday evening an unknown individual inside the United States Supreme Court leaked a draft decision written by Justice Samuel Alito which would explicitly overturn the landmark decisions Roe v. Wade and Planned Parenthood v. Casey. This would mean the end to a guaranteed federal constitutional protection of abortion rights and at least 22 states, including Missouri, would almost immediately ban abortion entirely. This has been the animating force behind the conservative legal movement for the last two generations and this is their grand triumph which will only embolden the court to go even further. The language of Alito leaves the door open for reconsiderations of Obergefell v. Hodges which legalized same-sex marriage and Lawrence v. Texas which invalidated state laws criminalizing homosexual intercourse, and if you compare his dissent in Obergefell to his draft majority opinion in Dobbs v. Jackson Women’s Health Organization it’s not hard to imagine the Court deciding to also “Send the issue back to the states”. The Constitution of the United States of America is in the hands of 6 members of the federalist society, we are entering a new era of American politics.

President Biden has made clear that his administration has no plans to protect abortion access. In a statement the morning after the leak, the President said, “If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.  At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.” It’s important to be clear about two points. The first, is the most important and it is that the president’s party almost always has a bad midterm. Data from fivethirtyeight.com shows a familiar pattern (that I also wrote about in 2021 here) “Overall, in the post-World War II era, the president’s party has performed an average of 7.4 points worse in the House popular vote in midterm elections than it did two years prior. Therefore, since Democrats won the House popular vote by 3.0 points in 2020, Republicans can roughly expect to win it by 4.4 points in 2022 if history is any guide…Indeed, in the 19 midterm elections between 1946 and 2018, the president’s party has improved upon its share of the House popular vote just once. And since 1994, when (we would argue) the modern political alignment took hold, the president’s party has lost the national House popular vote in six out of seven midterm elections — usually by similar margins (6 to 9 percentage points) to boot.”

It took 9/11 for George W. Bush and Impeachment for Bill Clinton, as well as voter coalitions that no longer exist, for them to break history. It is extremely unlikely that President Biden, given his approval ratings, economic conditions, and redistricting will outrun history. The second point is, when Democrats had 60 Senators there were not enough votes to codify Roe into law. In 2022 there are not realistic opportunities to win 60 Senate seats, meaning the only avenue to codifying Roe or expanding the Court or any potential remedy would be through abolishing the filibuster which cannot find 50 votes in the US Senate. Currently in the House of Representatives, Speaker Nancy Pelosi is campaigning for the lone anti-choice Democrat in the House while he has a viable progressive challenger in Jessica Cisneros. This is the state of our opposition party, these individuals are the last line of defense.

There are some who have used this dark moment which represents the greatest contraction of civil rights since the end of Reconstruction to deliver an “I told you so”. These people would like to do historical revisionism about the 2016 election and have taken to blaming the left-wing in this country for the state of the Supreme Court. Generally, it’s not worth engaging in this discourse, but I’ve decided to do so today if not for the sole reason that these narratives are actively hindering the success of any centrist let alone any liberal project in this country. Candidly, we are rapidly approaching different entirely preventable disasters and we shouldn’t waste any more time promulgating useless ideas. So, I’m willing to address the skyscraper sized elephant lurking around this discourse, What if Hillary Clinton had won. It’s probably the most frequent hypothetical among liberals, and my read of the alternative is blessed by hindsight but is not informed by omniscience. This is what I believe would’ve happened, it is not exhaustive of everything that could’ve happened.

It’s important to note that Clinton didn’t lose because of insufficient support from the left. In 2008, Clinton did 13 public campaign events for then-candidate Sen. Barack Obama. In 2016, Sen. Bernie Sanders did 41 public campaign events for Clinton during the general election. In 2008, 25% of Clinton primary voters supported Sen. John McCain. In 2016, only 12% of Sanders supporters voted for Trump, meanwhile 13% of Obama’s 2012 voters supported Trump. Clinton lost because she was the most unpopular Democrat to run for President in the history of modern polling and would’ve been the most unpopular candidate period if not for Donald Trump. In terms of ideology, it’s hard to remember now but a critical number of voters wrongly perceived Trump to be more moderate than Clinton. To imagine a world in which Clinton wins the election is not difficult because in spite of her weak electoral performance and rock bottom approval ratings, she very nearly did win. Let’s imagine that James Comey does not release his October letter which hurt Clinton among late deciders and Clinton narrowly wins Michigan, Wisconsin, Pennsylvania, and Florida bringing her to 307 electoral votes. Let’s assume, for Clinton’s sake, that her improved margin extends down ballot which would mean victories in the Pennsylvania and Missouri Senate races and probably an additional 2-3 house seats. This would give her the exact same evenly divided Senate the Biden has but a GOP controlled House. So, what would have happened to Antonin Scalia’s vacant seat?

President Hillary Clinton would submit her nominee to the Senate Judiciary Committee, likely Sri Srinivasan of the D.C. Circuit or Jane Kelly of the 8^th Circuit. The nomination would advance deadlocked from the committee, NeverTrump Republicans like former Sen. Jeff Flake would not adopt their current faux moderate posture without Trump as a foil but would return to the vapid anti-Clinton rhetoric that dominated the 90s. It is likely that Republicans would filibuster this Supreme Court nomination, led perhaps by Sen. Ted Cruz who would now likely be heir-apparent for the 2020 nomination or Sen. Jeff Sessions who instead of being disgraced former Attorney General would be an ideological leader in the GOP Conference. Even without the filibuster, the nomination is in jeopardy as Sen. Manchin is non-committal about supporting the nominee and no GOP Senator wants to cast the deciding vote in favor. Senate Majority Leader Schumer undertakes an effort to abolish the Senate filibuster for Supreme Court nominees, it fails 47-53 with Senators Joe Donnelly, Heidi Heitkamp, and Joe Manchin voting with all Republicans. President Clinton is forced to withdraw her nomination and through a compromise with Mitch McConnell and Chuck Grassley nominates then Gov. Brian Sandoval of Nevada, a “moderate” Republican. He is confirmed with all 50 Democrats and 16 Republicans voting in favor. Justice Anthony Kennedy, a Republican appointed by Reagan, opts not to retire while Democrats control the Senate and Presidency. Justice Ginsburg again postpones retirement, fearing that she too will be replaced by a conservative compromise candidate.

In 2018, Democrats suffer sweeping loses in the midterm elections. Republicans elect Josh Hawley in Missouri, Rick Scott in Florida, Joe Donnelly in Indiana, and Kevin Cramer in North Dakota just like in our reality. However, Republicans also pick up West Virginia and Montana while holding Nevada as Democrats narrowly squeak by in Arizona, Pennsylvania, and Ohio. There is no special election in Minnesota, Democrats don’t force Al Franken to resign and launch at attempt to discredit the MeToo movement as liberal figures like Harvey Weinstein and Kevin Spacey find themselves accused of sexual misconduct. This is done partially to protect the tenuous Democratic majority, but also to discredit renewed criticism of former President Bill Clinton as his connections to child sex-trafficker Jeffrey Epstein become public knowledge during a special counsel investigation lead by Robert Mueller was launched by the House early in the administration. On January 3^rd, Mitch McConnell becomes Senate Majority leader once again with 55 seats. Democrats make gains in the House, although still in the minority they make gains in the suburbs bringing their numbers just above 200.

In 2019, Several Republicans announce their candidacies for President including Sen. Ted Cruz fresh off his double-digit re-election, Governor Nikki Haley, and Sen. Tom Cotton while Speaker Paul Ryan forms an exploratory committee before ultimately deciding against a run. Donald Trump is speculated to be a potential candidate, but instead successfully pivots his failed run for President into a New York Times best-selling novel with accompanying docuseries chronicling his rise to the GOP nomination self-describing as a “populist revolutionary”. Clinton herself faces a spirited primary challenge from Oregon Senator Jeff Merkley (the lone member of the Senate to endorse Sanders in 2016), and he wins the New Hampshire primary as well as a few caucuses, but he is never seriously close to overtaking Clinton and she wraps up the nomination before mid-March. The pandemic still rages across the globe in 2020, in the United States the pandemic is made worse by a severe economic recession. President Clinton and the GOP Congress deadlock on several fronts and settle on a relief package that mirrors the 2009 recovery, however it is not passed until May leaving millions scrambling to compete for resources from overwhelmed nonprofits. Infections are lower than our current reality because Clinton never disempowers the CDC and is prepared for a pandemic level event, but anti-lockdown activity begins earlier and is more violent as people are animated not just by anti-science conspiracy but also anti-Clinton sentiment. In September, Ruth Bader Ginsburg dies, and Republicans hold open her seat for the duration of the 2020 Election. President Clinton is likely defeated, not since the election of 1820 have there been 2 successive 2 term presidents of the same political party. If Clinton did win re-election, it’s hard to imagine Democrats having better midterm prospects in 2022 than what they face today. When she does lose, Republicans appoint Attorney General Pam Bondi of Florida or perhaps law professor Amy Coney Barrett. Justice Anthony Kennedy retires shortly thereafter, and Judge Brett Kavanaugh is elevated to his seat. Roe and Casey are functionally though not explicitly overruled in a 5-4 decision, with Sandoval joining the liberal minority in dissent.

Seeing as a Clinton victory might not have been enough to avoid our current reality, what would’ve needed to happen to avoid this nightmare? You don’t have to get into butterfly effect level science fiction or have had psychic super power to be able to imagine how things could’ve gone differently. If:

1. At any point between 2009 and 2015, if Justice Ruth Bader Ginsburg had opted to retire, abortion rights, voting rights, labor rights, and many civil liberties would not be facing near certain annihilation. In 2013, Ginsburg had battled cancer twice by the age of 80 and the political environment in Washington was increasingly polarized. It was clear to contemporary writers that should Republicans capture the Senate, something they were heavily favored to do given the history of midterm elections, because of rising partisanship it would be unlikely that a liberal successor could be confirmed. At the time, the balance of the court was 3 hard right conservatives, 2 center-right conservatives, and 4 liberals. The few liberal victories of the 21^st century were generally 5-4 decisions, and the disappearance of any justice would have a dramatic impact on constitutional law. Furthermore, the disappearance of a liberal justice would of course mean a hard right turn in the court at least until a conservative vacancy appeared. Ginsburg, understanding the stakes of her decision opted not to retire. When she died, as an attempt to shield her legacy perhaps realizing the disastrous effect of her decision to not retire, sheepishly relayed a message that she knew would not be honored. Ginsburg had no reason to believe her replacement would not be a woman, as President Obama had nominated both Elena Kagan and Sonia Sotomayor to the Supreme Court. Ginsburg had no reason to believe that her replacement would be less liberal, as Sotomayor actually disagreed more with Kavanaugh, Thomas, Alito, and Roberts than Ginsburg did in the 2019 term. There was no reason for Ginsburg to do what she did, and that decision more than anything else is responsible for this moment.
2. In 2014 and 2010, Democrats lost several close Senate races and spent tens of millions of dollars on blowout losing races. If the party had decided to abandon clear losers and directed that spending elsewhere, Democrats might’ve had a Senate majority in 2016 when Scalia died. Which would’ve meant a liberal Supreme Court, not just a not as far right one, but a genuine liberal majority which hasn’t existed in generations. Let’s look at the 2010 races, Sen. Blanche Lincoln (AR-D) spent $12 million for 37% of the vote, Gov. Charlie Crist (FL-I) and Rep. Kendrick Meek (FL-D) spent a collective $23 million to receive 29.7% and 20.2% of the vote respectively, and Robin Carnahan (MO-D) spent $10 million to receive 40.6% of the vote. Meanwhile Democratic Senate candidates in Illinois and Pennsylvania failed by less than 2% of the vote. What might an extra $45 million split between the two of them have meant? So, what about 2014? Mark Pryor (AR-D) spent $14 million to receive 39% of the vote and Alison Lundergan Grimes spent $18 million to receive 41% of the vote. Meanwhile, Democrats lost Alaska, Colorado, and North Carolina by less the 2.3%. If those races had broken Democrats way, they would’ve certainly had enough votes to Supreme Court Justice. Unfortunately, this pattern has only intensified as Democrats burned a whopping $250 million dollars to be beaten by double digits in Kentucky, South Carolina, and Alabama while losing several close House races.
3. In 2009, Democrats could’ve attempted to codify Roe. For 3 months, Democrats had a filibuster proof majority and then just shy of it the rest of that congressional term. There were likely enough Pro-Choice Republicans to overcome the objections of Anti-Choice Democrats, and even if compromise legislation had to be crafted it is a near certainty that it would’ve been better than our current system which has allowed states like Texas and Mississippi to ban abortion without outright doing so. It certainly would’ve been better than allowing a conservative court to decide the fate of abortion. But the fault on this one doesn’t lay solely with Harry Reid, but with President Barack Obama. In 2007, he said at a speech to Planned Parenthood that the first thing he’d do as President was sign the “Freedom of Choice Act” which would’ve codified Roe. Before he’d been President 100 days, it had been completely dropped from his agenda and he said of the bill that it was “not my highest legislative priority” and apparently not a priority at all.

That leaves just one burning question, what can we do now? Some of you will be tempted to say “vote!” or some variation of “elect more Democrats”. I’d like you to just consider this, for a moment. In 2018, more than half of Americans could not name a single Supreme Court Justice. Although most Americans (71%) blame Vladimir Putin and Oil companies (68%) for the rising cost of oil, however a majority also blame President Biden (51%) and Democratic Party policies (52%). Most voters don’t perceive politics through the lens of obsessive partisan observers, and often are more likely to see correlations and be unaware of longer-term trends. This is all to say that there is a critical mass of voters who will say “Why should I be convinced that my support has mattered or will matter? I’ve always voted for Democrats, and they just beat Trump so why is this happening.” If Abortion rights disappear while Democrats control congress and the Presidency, the fine details will be lost and I don’t think it’s logical to assume that the response among voters will be a Democratic surge. Although, you should support candidates who support abortion rights when given the opportunity. It’s important to keep protesting, donate to abortion funds to support people who are going to have trouble finding access, and testify against state efforts to criminalize abortion.  But beyond that, what else is there? Not much that isn’t 10 years too late. What’s really important is for the left to develop a sense of our place of history and work towards a long-term vision for society. The right knows who they are and where they are going and have been working for it since the New Deal. We must have that same determination and will or there will come a day when we wake up in a country that we do not recognize as our own. We may already be there.

The post Would President Hillary Clinton have saved Roe? Probably Not appeared first on Occasional Planet.

In 2021, as summer ebbs into fall, Democrats are concerned with a number of issues, but perhaps most importantly, abortion. It has become a wildcard issue because the Supreme Court has rendered a decision regarding it that neither is supreme nor courtly.

Bullies and cowards often travel together, and that is precisely how Republicans have acted regarding the latest legislation from the hallowed halls of the capitol of Texas. The Lone Star state has enacted the strictest abortion law in the land. Essentially it outlaws any abortion that would be performed approximately six weeks following conception. That’s the bullying part – exercising arbitrary and capricious power to encroach on a basic human right. And, of course, the Republicans chose to place far more restraints on the women of Texas rather than the men. In case you have forgotten, men don’t need abortions.

The cowardice angle is that the state is relieved of any enforcement responsibilities. Rather than have state authorities monitor abortion clinics for alleged crimes, the state “farms out” responsibility for enforcement to the citizens of Texas, or for that matter, the citizens of any other state who might happen to be in Texas. They are empowered to sue any woman in Texas who chooses to have a prohibited abortion.

The “infraction” is not settled in criminal court; rather in civil court where the “apprehender” or bounty hunter can seek to recover as much as $10,000 from a fine levied on the woman seeking the abortion. In further acts of cowardice, the law states that not only can a woman receiving an abortion be sued, but any other person who is “complicit” with her can as well. This could be the receptionist at the abortion clinic, the Uber driver who gives her a lift to the clinic, and any healthcare professional who works or volunteers at the clinic.

Indeed, Americans live in a strange country when the supreme court of the land, operating under the jurisdiction of the world’s oldest and presumed fairest constitution, cannot find one, much less dozens of reasons, to rule this sham of a law unconstitutional.

Almost all conservatives vehemently oppose abortion. Is there anything that draws a similar opposition from progressives?

How about gun control? Just as conservatives see abortion as an issue if life, progressives see unfettered gun rights as a matter of life, and death. Ever since 1973, when abortion became legal in the United States in the Roe v. Wade ruling, conservatives have been successful at chipping away at abortion rights to the point where now in Texas, over 85% of what were legal abortions are now against the law. Dozens of other states are fashioning similarly draconian laws.

During that same forty-eight-year period of time since Roe v. Wade, progressives have been trying to chip away at gun rights in the interest of gun safety. In 1973, Richard Nixon was still hanging on to his presidency with its law and order mantra. The rate of violent crime in the United States was growing rapidly. Conservatives favored stricter laws against gun crimes. Some progressives favored stronger penalties as well, but most wanted to deal with the root of the problem, the presence of guns, legal and illegal, on the streets and in the homes of Americans.

How much progress have progressives made in reducing the number and the of guns in America and the power of the types that are legally permitted? The answer is virtually none. In 1994, with Bill Clinton as president, the Democratic Congress passed a ten-year ban with the Public Safety and Recreational Firearms Use Protection Act. It did outlaw some powerful weapons, but there was the sunset provision, limiting the restrictions to ten years before the law had to be renewed.

Conservatives were outraged that the bill passed. Less than two months after the bill became law, the first nail was hammered into its coffin as Newt Gingrich and the conservative Republicans took over Congress. By the time that the ten-year life of the bill was over in 2004, Republican George W. Bush was president, and he was in a position to veto any extension of the law. Since that period, gun laws have not been strengthened; they have been weakened.

So, suppose that progressives wanted to counter the strength of guns in America in a fashion similar to what Republicans have done with abortion. If there was to be symmetry in their strategy to what Republicans did, they would choose to not have any have any government agencies or officials involved in enforcing the laws.

Instead, they would set up a bounty system similar to what Texas Republicans have done to curtail abortions. Progressives would pass a law that would enable citizens to monitor the presence of weapons, particularly assault weapons, in the streets, workplaces, schools and homes of America.

That way, progressives could try to be like conservatives and bully their foes. They could establish un-armed posses to travel throughout America, to wherever guns are present. They could courteously go to gun stores, gun shows, bars, gang hideouts and wherever else there might be high concentrations of guns and please ask the owners (legal or illegal) to surrender their weapons in return for a summons to appear in court. This method by progressives to deal with guns would have a parallel construction to how conservatives in Texas are currently dealing with abortions.

Conservatives would be pleased with these parallel laws. All that they would have to do would be to take a picture of a woman about to have an abortion, along with anyone assisting her, and issue a warrant for their arrest. They show up in court and their work is done and they are richer.

Progressives would simply take pictures of people with guns and find a way to serve a warrant on the gun owners and be sure to say ‘please’ when they do so.

This is what conservatives call fair. They can act like bullies and prevent a woman from having control of her body while the other side must forcefully try to confiscate powerful firearms.

Yes, the absurdity is very clear to progressives; not at all to conservatives. This is why conservatives are winning so many of the battles these days. They get to use firearms as their weapon of choice; progressives use a basic right on human reproduction. If you can’t see a power imbalance in this conundrum, look again.

The post Limiting guns vs. limiting abortions: The right wing wins again appeared first on Occasional Planet.

The US Supreme Court didn’t always have nine members. The original Supreme Court established by the Constitution in 1789 had six. However, the number of Supreme Court justices is not set by the Constitution. Congress sets the number, and Congress has flip-flopped. The six members were reduced to 5 in 1801. And in fact, the number of justices on the Supreme Court changed six times before settling on the present nine in 1869. In other words, the number has never been set in stone. Just possibly, to enable a broader spectrum of opinion on the Supreme Court, we could have 13, 15 or more members.

Is that unthinkable?

No. Franklin D. Roosevelt proposed increasing the number to 15 in 1937 though the idea wasn’t well-received. Roosevelt was accused of trying to pack the court, attempting to load the court with justices who would support his New Deal policies. The Senate voted down his 15-member Supreme Court idea 70 to 20. But just last year, the Democratic presidential candidate Pete Buttigieg again raised the possibility of a 15-justice Supreme Court. In Buttigieg’s plan, five justices would be Democratic, five Republican, and five apolitical. More recently, as a response to the possibility that Thump might be able to load his own Supreme Court following the death of Ruth Bader Ginsberg, Massachusetts Senator Ed Markey got himself into trouble with the Biden campaign by pushing that his party “must expand the Supreme Court” if power shifts to the Democrats. Markey is not alone. On September 20th, former Attorney General Eric Holder tweeted, “If the court-packers succeed in forcing another conservative onto the court regardless of the outcome of the 2020 election, enlarging the court would be a democratic necessity, not payback.”

And if 15 Supreme Court members somehow seems to be pushing the envelope, how about 79? Spain’s Supreme Court, the Tribunal Supremo, was established in 1812 and started out with 16 members. Over time, that number first increased to 25, and then to 33. 33 became 40, until finally 40 became the 79 magistrates that make up the Spanish Supreme Court today.

Lifetime tenure is not taken literally in most parts of the world. Ireland, Belgium, Canada, Peru, Australia and South Africa are among the countries that require justices appointed for life to retire at 70. Longevity, one of the factors that makes the US selection process so fraught, is removed from the picture. Finland sets the retirement age for its Supreme Court judges at 65, as do Ukraine and Barbados.

And there are various options for the Supreme Court selection process too. In Germany, judges of the Federal Court of Justice, the highest court, are selected by an electoral committee convened by the Federal Minister of Justice. There are 32 members, the Secretaries of Justice of the 16 German Federal States and 16 representatives appointed by the German Federal Parliament. Voting is secret. Once a judge has been chosen by this committee, he or she is appointed by the President. But his or her confirmation requires a two-thirds majority vote in the German Parliament; this gives the opposition pretty much veto power over any candidate, but also ensures complicity in the election of judges.

Other countries take other Supreme Court selection approaches. In Chile, lists of candidates are provided by the court itself. In Costa Rica, Supreme Court justices are elected by the National Assembly for a period of 8 years, renewable again only by National Assembly vote. In Denmark, the Monarch appoints judges based on the recommendation of the Minister of Justice and the advice of a Judicial Appointments Council, an independent six-member body of judges and lawyers. In Qatar, magistrates are appointed for three-year renewable periods. Uruguay appoints its justices for 10 years, with a new term possible after a lapse of five years.

The current US model is not by any means the only Supreme Court blueprint available or followed in much of the rest of the world. In fact, we may have valuable lessons to learn by studying and evaluating how the rest of the world goes about recommending Supreme Court justices, choosing the number of possible justices and deciding on how long those justices stay on the court.

The post Supreme Courts: American and international variations on a theme appeared first on Occasional Planet.

The Supreme Court’s decision in Shelby County v. Holder—to overturn the “pre-clearance” requirement in Section 5 of the Voting Rights Act—continues to have major ramifications for voting rights in America. Just before the decision came down in 2013, The Brennan Center for Democracy looked into its crystal ball and envisioned what would happen if the Court decided against pre-clearance. The predictions were ominous, and, unfortunately, they began to materialize, just days after the Supreme Court’s opinion went live. Here are the general categories into which new voting rights abuses were likely to fall, according to the Brennan Center’s prescient predictions. Check them against what has actually happened. I’m republishing this post because of its continuing relevance in the Trump era of diminishing American democracy.

Jurisdictions could try to revise discriminatory changes blocked by Section 5.

To give you a sense of the scope of this category, consider that 31 such proposed changes have been blocked by the Justice Department or the federal courts since the Voting Rights Act was last reauthorized just eight years ago. In just the past six months, after the 2012 election, many such challenges have been rejected.

Jurisdictions could put in place broad discriminatory practices they were previously “chilled” from implementing by Section 5’s pre-clearance requirement.

In South Carolina v. Holder, a Section 5 challenge that preceded the 2012 election, U.S. District Judge John D. Bates, an appointee of George W. Bush, highlighted the deterrent effect of the statute — how it prevented state lawmakers from moving forward with the most obviously discriminatory practices, and how these officials narrowed the scope of their proposed voting change to track the requirements of the Section. That deterrent effect will be gone.

Jurisdictions might implement those discriminatory practices they tried but failed to get past the Justice Department under Section 5.

The Brennan Center reports that 153 such voting measures have been submitted and then withdrawn in recent years after federal officials questioned the discriminatory nature of these proposed laws. Even if just half of these policies were to be reconsidered and adopted in the absence of Section 5 they would significantly change the voting rights landscape in several Southern states.

Finally, the most obvious impact — jurisdictions might try to adopt restrictive new voting measures they neither contemplated nor dared submit for preclearance under Section 5.

For best effect, those lawmakers could do so on the eve of an election, forcing voting rights advocates to scramble and practically daring the federal judiciary to enjoin the measures. We wouldn’t likely go back to the age, as John Lewis recounted, where black voters would have to guess the number of bubbles in a bar of soap. But we wouldn’t be too far off, either. Just last election cycle, in Texas, lawmakers sought to impose what amounted to a poll tax on indigent — or carless — registered voters.

If you think these predictions sound hysterical, Orwellian and unlikely to occur in this country, think again. In the past seven years, states and local jurisdictions enacted legislation on many of the fronts outlined by the Brennan Center. We need to stay on full alert.

The post Life after the Voting Rights Act appeared first on Occasional Planet.

The Missouri Senate race is tied and, in a scene so dramatic that it could be made into a film, we just so happen to have a nearly evenly divided Senate, with a Supreme Court vote less than 8 weeks from Election Day. This situation clearly has raised the stakes for a lot of Senators, especially those running in states that President Trump carried in 2016, like our own Sen. Claire McCaskill. I’ve met Sen.McCaskill a number of times, in fact her 2006 campaign was the first campaign ever that I remember in detail. I’ve followed her political career closely.  At times I’ve been inspired, and at times I’ve been disheartened. McCaskill brands herself a moderate, and she votes like one, but I’ve supported her because I understand the importance of the Senate. I’ve knocked on hundreds of doors, spent hours talking to voters, and donated what I could to help her campaign. I like Claire: I find her to be an amazing story teller and approachable person who reminds me of an older style of retail politics. However, if Claire McCaskill votes for Brett Kavanaugh I almost certainly won’t be voting for Claire McCaskill. There’s no circumstance where I’d vote for Josh Hawley, noted Trump sycophant and crusader against women’s progress. Yet, if McCaskill votes to confirm Kavanaugh as a member of the Supreme Court, I might be forced to spoil my ballot for US Senate.

The St.Louis Post-Dispatch Editorial Board recently published an article arguing that McCaskill should vote for Brett Kavanaugh because “sometimes you look over the battlefield, accept that victory is beyond your grasp, and prepare to fight another day.” There is an implication that because McCaskill likely won’t be the deciding vote, she should vote for Kavanaugh purely on some contrived notion that it helps her survive politically. There’s not a whole lot to suggest that voting for Kavanaugh has any political upside. We know this because pollsters have asked Missouri voters. This Fox News poll (say what you will about their newsroom, but their polling is one of the gold standards according to Nate Silver) shows that among likely voters, there would be no movement no matter how McCaskill votes on Kavanaugh. If she were to vote against confirmation, 26% of voters would be more likely to support her, 26% would be less likely to support her, and it would make no difference to 39% of voters. So let’s forget about this idea that voting for Kavanaugh makes McCaskill appealing to more voters, because at this point that’s just factually untrue.

What’s more important in my view, even if there was some political upside to voting for Kavanaugh, she still shouldn’t do it. McCaskill supporters (myself included) have prided ourselves on supporting someone who has a record of promoting women’s reproductive freedoms, voting rights, expanded access to healthcare, unions, and a host of other very important issues. Voting for Brett Kavanaugh literally would negate all of the work we’ve done on those issues. Kavanaugh’s judicial opinions, his work in the Bush White House, his appearance on the Federalist Society list, and the stated goals of President Trump in picking appointees should immediately disqualify him from McCaskill’s consideration. The pantomiming and damned kabuki theater have gone on far too long. There is no “living to fight another day,” if McCaskill is willing to vote for someone who is so antithetical to everything she claims to believe, then the fight is already over. Progressives have been willing to compromise their deeply held beliefs for McCaskill under the unspoken agreement that when the time came for the big things, like the Supreme Court,she would stand with us. When she voted to extend the PATRIOT ACT in 2011, we came out in full force to return her to the Senate in 2012. When she voted for the Keystone Pipeline in 2014 after the party had already been decimated in the midterms, we were there. When she voted for a $350 billion arms deal with Saudi Arabia in 2017, we were still there. Now she has to be there for us.

I’ve heard the argument from good, well meaning friends of mine that not voting for McCaskill is essentially voting for Hawley. If McCaskill would vote like Hawley on the Supreme Court, then I’m put in the awkward position of trying to explain to not just voters but myself how they’re different. It doesn’t matter how many times McCaskill votes to protect Obamacare and reproductive choice or how many times Hawley would try to gut those things. Because if McCaskill votes for Kavanaugh, she has given the Court her approval to gut those things, and we end up with policy outcomes that look like Hawley won anyway. Again, McCaskill won’t be the deciding vote on the confirmation in all likelihood, but that’s not the point. If a bill arrived on the Senate floor declaring the entire state of Missouri be used as a landfill for medical and nuclear waste, even if it got 99 votes, I’d expect McCaskill to still vote no. The point is, when these watershed moments happen where you’re meant to pick between principle and politics, you pick principle. You do the right thing, and you stand confident in your convictions. This song and dance, the “will she or won’t she,” is ridiculous.McCaskill ought stop trying to impress people who will never vote for her and remember who sent her to Washington in the first place.

Not only that, but remember why she wanted to go to Washington, which as I remember was to “stand up to anyone or anything to fight for Missouri’s families”. That’s what she said in her 2006 victory speech, and I took her at her word. McCaskill might see this vote as “damned if I do, damned if I don’t”, but that’s not true. It’s time for her to stand up to Mitch McConnell and the dark money donors who will try to make her a boogeyman. There are a lot of activists who feel the same way I do, and we’re pretty much in agreement about our concerns.  I want to support McCaskill, I’m a Democrat and I believe the only way to move this country forward is by electing more democrats who are sympathetic to a progressive agenda. McCaskill doesn’t need to become a progressive firebrand, I’m not asking for her to abandon her independent identity, I’m not asking her to start going to work for Chuck Schumer…but I am asking her to vote no. Because if she doesn’t vote no, then I can’t in good conscience vote for her.

The post McCaskill Needs to Vote Against Kavanaugh appeared first on Occasional Planet.

How will the next justice appointed to the Supreme Court vote? The answer, history tells us, is: We don’t know for sure. Surprises happen.

As for now, in 2017, the suspense is over, and President Bannon-Trump has nominated Neil Gorsuch. And now, the speculation has begun. Typically, members of the Senate Judiciary Committee try to pin nominees down on how they might vote on crucial issues. Their writings and previous rulings are literally scrutinized and figuratively x-rayed, examined microscopically and carbon dated.

But you don’t really know how they’ll vote until they do it. That’s not a very satisfying answer, especially if you’re on the Senate Judiciary Committee and hope to be able to say, years from now, “I told you so.” But among legal scholars, journalists and Supreme Court junkies, judicial predictability is a subject of debate.

Examples abound of justices who turned out to be exactly what their appointing presidents had hoped for, hewing closely to a particular judicial or ideological philosophy. But many justices have surprised their presidents and supporters with “unpredictable” votes. Here are some of the factors that play into the discussion:

It depends on the meaning of the word “surprise”

An article in Time attempts to debunk several myths about the Supreme Court. Among these is the myth of surprise votes. Time says:

One way to feel better about a prospective Supreme Court Justice nominated by a President you don’t much care for is to invoke the common wisdom that many Justices, after ascending to the high court and the life tenure that goes with it, betray the politics of their appointing Presidents. And it is true that history reveals a fair number of Justices who defied expectations. But there is much less to this than meets the eye. With few exceptions, the “surprise” Justices were either picked for non-ideological reasons or were foolishly misjudged by the President making the appointment.

Exhibits A and B

President Dwight D. Eisenhower was once asked if he had made any mistakes as president. His widely quoted answer was, “Yes. I made two mistakes, and they’re both on the Supreme Court.”

Eisenhower was referring to Earl Warren and William Brennan. He chose Warren, who was governor of California, as part of a political deal. (Brennan had supported Eisenhower’s bid to become the Republican Party’s nominee.) Ike chose Brennan—a Democrat—because he was a northeastern Catholic, for the demographics. Historians suggest that Eisenhower should not have been “surprised” when Warren and Brennan became the leading forces behind the aggressively liberal Supreme Court in the 1960s, because he hadn’t chosen them as a way of perpetuating his own ideology.

Another non-surprise “surprise”

Another example cited by Time is David Souter:

President George H.W. Bush expected [Souter] to be a reliable conservative, but he quickly emerged as anything but. Bush, however, had no one to blame but himself (and perhaps his chief of staff, John Sununu, who reportedly told Bush that Souter would be a “home run” for conservatism). As became obvious at his confirmation hearing, Souter’s brand of moderate New England Republicanism was completely at odds with the pro–states’ rights, pro–prayer in schools, pro-life, anti–affirmative action views that make for a judicial conservative on the modern court. [Souter joined in a ruling affirming a woman’s right to an abortion, and he became a reliable liberal vote. He was one of the four dissenters in the 2000 decision in Bush v. Gore that sealed the presidential election for George W. Bush.]

In other words, Souter wasn’t a surprise: Bush just blew it.

True shockers

Over the past 60 years, many justices have dashed the expectations of their sponsors by changing “sides” on crucial issues. (Republican presidents have experienced this judicial “switch” more often than have Democratic presidents.)

Among recent justices, Sandra Day O’Connor stands out for the surprise she sprang on Ronald Reagan, who appointed her, and on Republicans who initially supported her. Before her appointment to the court, O’Connor was on record as unequivocally “pro-life.”  On the court, however, she voted against every effort to overturn or alter the 1973 Roe v. Wade decision.

Justice Harry Blackmun also exemplifies this phenomenon. A 2005 article chronicled his dramatic shift to the left:

Appointed by President Nixon in 1970, Blackmun initially voted consistently with Chief Justice Warren Burger. As time went on, though, his voting record diverged from Burger’s. The turning point came in 1973, when Burger assigned Blackmun the job of writing the majority opinion in Roe v. Wade. The public’s negative reaction forced him to defend the decision, and that defense—and it’s logical extensions, gradually led him to adopt positions far different from those with which he arrived on the court, and he came to champion the rights of women and the poor.

Another case in point is Byron “Whizzer” White. Appointed in 1962 by President Kennedy, who had met him at Oxford, White was thought to be a moderately liberal justice. A decade after Kennedy died, White cast one of only two dissenting votes against Roe v. Wade.

An additional notable example is Felix Frankfurter. He joined the Supreme Court after a career as a liberal law professor, and he also was among the founders of the American Civil Liberties Union. But, legal historians say that

“he was regarded as a turncoat by many for failing adequately to support civil liberties, especially when harsh anti-Communist measures were enacted in the 1940s and 1950s.”

Finally, an anecdote published in the National Catholic Reporter exemplifies the difficulty of predicting how a Supreme Court nomination will turn out.

In a recent article in The Washington Post, Stewart Spencer, political strategist to President Gerald Ford, recalled the bishops’ involvement in the selection of Justice John Paul Stevens in 1975.

Spencer said that he met with a delegation of bishops and they gave him a list of three candidates. He continues: “I [later saw the president] and said: ‘I met with the bishops of the Catholic church today. They have an interest in your appointment to the Supreme Court.’ [Ford] smiled. ‘I bet they do.’ I pulled out this list and said: ‘They gave me this list. These are people who are acceptable to them. I’m not going to lobby, I’m just going to give you the list.’ He looks at the list, puts it in his drawer. … Ten days later he appoints John Paul Stevens to the bench. He was on the list.”

Stevens went on to become the court’s most stalwart liberal vote, including defense of Roe v. Wade.

The lifetime factor

Being appointed to the Supreme Court for life may be an ideological liberator, say some observers. This lifetime factor may contribute to what some call the “dirty little secret” of Supreme Court tenure: Many justices, no longer needing to build a record based on a particular ideology, turn out quite different from what anyone thought they’d be.  No matter how carefully they’re screened, goes this theory, any judicial nominee could undergo a transformation in either direction after assuming a life-tenure seat on the high court.

But a justice doesn’t have to do a full 180-degree turn to exhibit a change in course. According to an article in the Northwestern Law Review: “…contrary to popular wisdom, virtually every Justice serving since the 1930s has moved to the left or to the right” [of where he/she presumably began].

Others disagree with this theory of “judicial drift.” “Most justices’ careers display consistency rather than drift,” says Christopher Eisgruber, provost and professor of public affairs at Princeton University.

“For example, Justice John Paul Stevens hasn’t changed his basic approach to constitutional issues since his 1975 appointment by President Gerald Ford, even though he recently disavowed the death penalty.”

Another scholar’s analysis of 22 justices appointed from the 1950s onward found that in all but four or five cases, the justices’ records were close to the ideology of the president who appointed them.

What’s a president to do?

The most important factors in avoiding Supreme Court surprises, says Lee Epstein, law professor at Northwestern University, are whether the president looks for a nominee who reflects his own ideology and whether the Senate is compliant. When those forces are in alignment, “the president is going to get what he wants.”

Will Republicans get what they want from Gorsuch, if he is approved?  We’ll get back to you with the answer to that question in, say, 30 years.

The post Supreme Court surprises: You don’t always get what you want appeared first on Occasional Planet.

It is all but guaranteed that President Trump’s nomination of Neil Gorsuch to sit on the Supreme Court will create a political inferno, aggravating the hysteria that is fracturing our nation. The debate involves numerous controversial issues, such as abortion, gay rights, campaign finance, affirmative action, religious liberty, and the constitutionality of social legislation such as the Affordable Care Act.

Here are five basic questions about our constitutional system that should be asked of any nominee to the Supreme Court. While I don’t consider the recommended answers sufficient to determine if a candidate should be appointed, they are a necessary first step.

Question One: The Supreme Court has created many “fundamental rights” that it vigorously protects. Over time, the Court alters these rights. Which fundamental rights are the most fundamental?

Answer: To prevent the Republic from degenerating into mobocracy, oligarchy or tyranny, the Court must uphold the electoral process. Elections should never be suspended. For example, Americans conducted a pivotal Presidential election in the middle of the Civil War. The Court also must protect the right to vote from unwarranted governmental interference.

Furthermore, elections are meaningless if people do not have robust freedom of political speech. The government should not be able to suppress particular viewpoints. Nor should governments punish anyone for “seditious libel.” The Court should interpret Brandenburg v. Ohio to hold that a defendant did not commit criminal incitement unless they intentionally encouraged people to violence and there was good chance that their inflammatory rhetoric would soon cause violence. In other words, it would never be a criminal act to encourage nonviolent civil disobedience. These core First Amendment rights protect individual sovereignty, self-expression, and the ability to participate authentically in the political process.

Perhaps the most important civil right is a citizen’s right of personal mobility. After a criminal conviction, most other rights mean little. The government should not be able to incarcerate an American citizen unless tried in an Article III Court by a jury of their peers (a right found in the Magna Carta). Thus, I agree with the dissent in Hamdi v. Rumsfeld, written by the late Justice Scalia and joined by Justice Stevens. The Supreme Court should not have permitted military tribunals to adjudicate terrorism charges against American citizens. It is too tempting to call political opponents “terrorists” and imprison them. There is not a lot of support for Scalia’s position among the elite, but sometimes the Court gets it terribly wrong.

Question Two: The Supreme Court has become a major political issue. Witness the furor surrounding your nomination. Do you think the Court has become too involved in electoral politics?  If so, how can it escape?

Answer: The Court has become too entangled in partisan politics. The Court should show significant, but not absolute judicial restraint by presuming that most laws and governmental actions are constitutional. The Court also should be wary of revisiting most prior constitutional decisions. I would be reluctant to strike down a law unless at least five other Justices agreed.  There are too many five-to-four opinions reflecting the competing ideologies of the two major Parties.

Question Three: What is the greatest threat to this nation’s domestic tranquility and the social fabric? What can the Court do to alleviate the problem?

Answer:  Feeling a loss of power, the populace has become shrilly divided along racial, gender, class, and religious lines. At a minimum, the Court must not permit governments to discriminate maliciously and expressly against people because of their race, gender, ethnicity, religion, or political viewpoints. The Supreme Court’s decision to outlaw overt school racial segregation in Brown v. Board of Education was one of its greatest acts.

Question Four: Do you believe in “the rule of law?”  What does it mean to you?

Answer: While it might be more accurate to say that our legal system consists of “the rule of law and judges,” we will lose our republic if the “rule of law” is discarded. The phrase has many meanings. The heart of the doctrine is that nobody, including the President of the United States or the CEO of Goldman Sachs, is above the law. For example, Clinton v. Jones properly decided that there is no absolute Presidential immunity.

There is extraordinary fear and anger right now. People across the political spectrum need to know that the Supreme Court will always protect their basic civil liberties.

Question Five: We would like to learn a bit more about your character. You have had a remarkable legal career. What have you done outside of the law to humbly help people without expectation of reward?

Answer: I have not relentlessly focused on my career. Here are some examples of how I have assisted friends, family, and individual members of the community….

These hoped-for answers provide a strong foundation for our republican system as long as most people across the political spectrum agree. Americans have developed a large set of core values and traditions that can sustain the best aspects of our society and provide us with the means to adapt to new challenges. Whatever you think about my opposition to military tribunals, there is much more common ground and good will than many Cultural Warriors on both sides would have you think. If not, then we have much more to worry about than Donald Trump or excessive political correctness.

The post 5 questions for any Supreme Court nominee [and 5 hoped-for answers] appeared first on Occasional Planet.

The Republican plot against American democracy is not a myth, a slogan, or a theory. It would probably make a very bad movie with an implausible story line. But it’s none of those things. It’s a contemporary Republican policy—and it’s in full operational mode.

I’m usually not a conspiracy theorist, but recent actions that are damaging the cornerstones of American democracy have me very worried. Over the past 30 years, we have witnessed—and tolerated—the slow poisoning of America’s democratic institutions, and the pace has accelerated dramatically in the 2016 election cycle. Put all of the pieces together, and you have a relentless and escalating assault on all three branches of our government, plus a significant chunk of the Bill of Rights.

Here are some elements of the plot:

Immobilizing the legislative branch of the federal government

We now know that, from day 1 one of Obama administration, Republican Congressional leaders vowed to block anything that Obama proposed—even if it was good for their constituents or for the country at-large. They have blockaded the legislative branch of government. They barely show up for work. It’s as though they’ve been on strike for eight years. Almost no legislation has worked its way through the House and Senate, as would be normally expected.

One-third of our system is at a standstill. I don’t remember hearing about that as an option in Civics 101.

Shutting down all government functions

Republicans in Congress went so far, in 2013, as to completely shut down the entire federal government for 16 days. They’ve threatened to repeat that action again and again, as a way of blackmailing the country into accepting their radical agenda regarding the federal budget, the debt ceiling, defunding Planned Parenthood, etc.  Shutting down the federal government is a beyond-belief, extreme measure. It’s an all-out assault on another third of our system—the executive branch.

This strategy isn’t new, it’s just being used more radically than ever. For decades, we’ve heard Republicans call for an end to certain regulatory agencies—such as EPA, OSHA, and the NLRB, agencies that restrict corporations from harming their workers. The total shutdown tactic is just anti-regulatory fervor taken to its illogical extreme.  And if you ever wanted proof that Republicans are trying to repeal democracy and replace it with something much less democratic, this behavior is it.

Crippling—if not destroying—the Supreme Court

And now, we have the ultimate assault on the third branch of government—the judiciary. Current tactics go far beyond the now quaint practice of slow-walking approvals of federal judges. We are now at DefCon 1—a total stonewalling of appointments to the Supreme Court. Who would ever have thought that, after the death of a Supreme Court Justice, the Senate would refuse even to hold a hearing on a nominee? Even worse, Republican leaders in the Senate now have vowed to reject anyone nominated to the US Supreme Court by a Democrat. This behavior makes you wonder if Republicans simply want to let the Supreme Court die by attrition, because they don’t like some of its recent decisions.

But Republicans are not limiting their attack to the three basic branches of our federal government. They are now engaged in a full-frontal assault on the Bill of Rights [except, of course, for the 2^nd Amendment.] Here are just a few examples:

Delegitimizing the Presidential election

The most recent example came when Presidential candidate Donald Trump made the shocking, unprecedented assertion that he would not necessarily accept the results of the 2016 Presidential election. That statement elicited gasps, even from Republicans, who immediately understood the democracy-destroying effect such a stance would have. American democracy has prided itself, for its 240-year history, on the peaceful transfer of power. When Donald Trump calls the election system “rigged,” and encourages his followers to reject the results, we are in serious trouble. Of course, Trump’s irresponsible statement did not come out of the blue. It merely represents the culmination of many years of Republican propaganda about voter fraud, which have planted seeds of doubt in the minds of many. If our election system loses the trust of the people, we have begun the descent into anarchy.

Undermining the right to vote

Republican governors and state legislators have been on a voter-suppression rampage. They are using blatantly unfair strategies, such as voter caging, to purge legitimate voters from the rolls. They are making it harder to vote, by demanding unnecessary photo IDs, restricting voting hours and reducing the number of voting locations. When the constitutionally guaranteed right to vote is limited or even denied by politically motivated actions, one of the essential pillars of American democracy begins to crumble.

By the way, it should be noted that these dangerous ideas are not new. Think back a couple of decades to the Reagan years, when budget director David Stockman voiced the “starve-the-beast” philosophy. The idea was to cut taxes, thereby so drastically reducing funding that government agencies would wither, shrink and be so small that one could “drown them in the bathtub.” The cynical corollary, as I understand it, was that when government was inadequately funded, it would become dysfunctional, making citizens see that government just doesn’t work. He and his contemporaries probably were using the term “government” to mean corporate and industrial regulations, as well as spending on the social safety net. Stockman later disavowed his own theory, but it lives on today, in a much more extreme incarnation.

The examples I’ve cited are far from an exhaustive list. I’m sure there area lot more. [For example, Donald Trump has said that we should rescind the clause in the 14^th Amendment that states that children born in the United States become American citizens regardless of the citizenship of their parents. How’s that for a takedown of a basic American value?]

I’m not a constitutional scholar, but even I can see that, taken together, these positions and actions add up to something very nefarious. They paint a really scary and bleak picture for the future of American democracy—if we let radical Republicans remain in control.

Vote.

The post The plot to kill American democracy: This is not a movie appeared first on Occasional Planet.

Republicans have clearly stated that they won’t even hold a hearing on President Obama’s Supreme Court nominee, Merrick Garland. But that obstructionist stand should not prevent Senate Democrats from holding their own “rump” hearings. [Definition of rump, in case you’ve forgotten: “constituting a subsidiary or small group or the remnant of a once larger organization”] 

I’d love to see the Democratic members of the Senate Judiciary Committee set up their own alternative, “rump” hearing. The Democratic Senators on the Judiciary Committee are: Patrick Leahy, D-VT, Dianne Feinstein, D-CA, Charles Schumer, D-NY, Dick Durbin, D-IL, Sheldon Whitehouse, D-RI, Amy Klobuchar, D-MI, Al Franken, D-MN, Christopher Coons, D-DE, Richard Blumenthal, D-CT. That’s an all-star lineup, many of whom would thrive on the attention they’d draw to themselves. Think Schumer, in particular.

I don’t know if Senate rules ban them from holding an unauthorized meeting in the Judiciary’s hearing room. But if such a prohibition exists, why couldn’t Democrats simply rent a nice meeting room somewhere in DC and convene there, unofficially?  It could be a very effective political move: They could show off Garland’s credentials while taking the opportunity to shame the Republicans for not doing their job.

They could also issue invitations to Republicans—both on and off the Judiciary Committee. Some Republicans—feeling vulnerable to November challenges because voters know that they’re doing nothing productive—have already said that they’d “meet with” Garland, even if they haven’t gone as far as saying they’d attend an official committee hearing. Maybe some of them would show up, too. What a public-relations coup that would be, eh?  [I know, magical thinking.]

Still, I would hope that, at minimum, C-SPAN would cover the “hearing,” and it would be even better if some courageous mainstream media outlet would be there, too. At the very least, print media and alternative sources could be invited.

How about it Democrats? Get creative. What have you got to lose, anyway?

The post Democrats should hold “rump” hearings on Merrick Garland appeared first on Occasional Planet.

In the 227-year history of the Supreme Court, about 80% of nominees have been confirmed. But the road to confirmation can be rocky, and the reasons for failure are varied. Here’s my take on some of the most intriguing stories in the annals of unsuccessful Supreme Court nominations. [A complete report on Supreme Court nominees–both winners and losers– is available at  Congressional Research Service.]

The numbers [some of them]

• Individuals nominated to U.S. Supreme Court since 1789: 151
• Nominees not confirmed by Senate: 36
• Nominees rejected, but re-nominated later and confirmed: 6
• Nominees confirmed, but declining to serve: 7
• Nominees submitted more than once, but not confirmed: 6

The first to fail

America’s first unsuccessful Supreme Court nomination occurred in 1789. George Washington nominated William Paterson, but withdrew the nomination one day later, when he realized that he was violating the almost-still-wet U.S. Constitution by appointing a sitting US Senator. The law creating the Supreme Court barred anyone from serving who was in office when the law was enacted. Washington’s workaround was to wait until a few days later, when Paterson’s elected term ended, and a new Congress went into session. Paterson was then immediately confirmed.

Most rejections for a President

The U.S. President with the highest tally of rejected Supreme Court nominees was John Tyler. He had the opportunity to fill two Supreme Court vacancies. In the final 15 months of his presidency, he made 9 nominations, in a convoluted merry-go-round of nominations, withdrawals and re-nominations of the same five men. Only Samuel Nelson, his fifth nominee, was confirmed.

Most notorious Justice who was almost not confirmed

Roger B. Taney was nominated twice by President Andrew Jackson. Taney’s first nomination, to Associate Justice, was postponed indefinitely by the Senate. During the next Congress, he was nominated and confirmed as Chief Justice, and he went on to author the Dred Scott decision, which upheld the legality of slavery.

A victim of downsizing

On April 16, 1866, President Andrew Johnson nominated Henry Stanbery to replace a justice who had  died the previous May. By the time Stanbery was nominated, however, the House of Representatives had passed a bill decreasing the number of associate justices in the Supreme Court from eight to six. The bill effectively eliminated the vacancy that Stanbery would have filled. Historians speculate that the downsizing was a calculated move by a Republican Congress to prevent Democrat Johnson from shaping the court. Interestingly, within two months of the inauguration of Republican President Ulysses S. Grant, Congress passed a law reinstating the eight-man Associate Justice bench.

Lame-duck nominees

If you want to be a Supreme Court justice, avoid being nominated by a president who is about to leave office. Two of President Lyndon Johnson’s nominees—Abe Fortas and Homer Thornberry—learned this lesson the hard way. Both were nominated during Johnson’s final seven months in office [after he announced that he would not seek re-election]. Seeing Johnson as a lame-duck president, nineteen Senators issued a statement indicating that, on this basis, they would oppose any nomination by President Johnson.

The biggest loser

Alexander Woolcott, nominated in 1811 by President James Madison, ran into a buzz saw of opposition because, as a U.S. customs collector, he had strongly enforced a controversial embargo. Senators also questioned his overall qualifications for the Court. The Senate rejected him by a vote of 9-24, the widest margin in Supreme Court history.

Ginsburg the inhaler

Although seemingly well-qualified for the Supreme Court, Douglas Ginsburg—nominated by President Reagan in 1987—never really made it to the starting line. After he was nominated, a report aired on National Public Radio (NPR) revealing that Ginsburg had used marijuana “on a few occasions” during his student days in the 1960s. Senators didn’t like that, but they were especially shocked to hear that he continued to smoke pot after graduation and while he served as a Harvard professor in the 1970s. Ginsburg got the message and withdrew his own nomination.

The rejected nominee whose name became a political verb

Supreme Court nominees who are rejected on the basis of their views—or at least their views as perceived by members of the Senate–are said to have been “borked.” The neologism derives from Robert Bork, nominated by President Ronald Reagan in 1987, and rejected by the Senate after some of the toughest and most substantive confirmation hearings in recent memory. Bork’s defenders say that his conservative views were unfairly portrayed.  Conservative commentators tend to define “borking” as the unfair vilification and defamation of a nominee to block his or her appointment. Liberal commentators take a different view, describing what happened in his confirmation hearings as a rigorous probing of Bork’s legal positions.

But whichever is your preferred definition, subsequent nominees clearly learned a lesson from the original “borking:” to avoid public positions that would enable anyone to “bork” them. To see that lesson in action, watch excerpts of the Senate confirmation hearings of current Supreme Court justices Roberts and Alito.

“Borking” came back into vogues when the Senate was preparing to hold confirmation hearings for Elena Kagan, who wrote a now-famous 1995 article labeling recent Supreme Court confirmation hearings “a vapid and hollow charade,” and calling for more rigorous questioning of nominees. Elena Kagan passed muster and joined the Supreme Court.

With the recent death [Feb. 2016] of Justice Antonin Scalia, the lessons of history are coming back into focus. Will President Obama even get a hearing for his nominee? And will any Obama nominee between now and the 2016 election get the approval of the Republican-led Senate?  This go-round could create a whole new chapter in Supreme Court history.

The post Supreme Court nominees who were rejected: Lessons from history appeared first on Occasional Planet.