“I think 2-term Presidents in their final year (from January 21 onward) should refrain from SCOTUS noms. I also think any POTUS in their 1st term should refrain from SCOTUS noms in the last 100 days of that term” – AnJuan Thomas
After Ruth Bader Ginsburg, the legendary associate justice of the Supreme Court, died last Friday, the immediate conversation across the nation turned to her replacement. There were 2 questions of significance: (1) when should she be replaced and (2) who should be nominated to replace her. Of course, this is all complicated by a very intense and divisive Presidential election that culminates in about 5 weeks. President Trump is the incumbent and, as Presidents before him, he has the power to send forth nominations for the U.S. Supreme Court. Now, with just over 100 days left in his 1st term, he stands to make another nomination to the highest court in the land. It’s a contentious matter because of what happened in 2016 when President Obama—inside of his last year in office—nominated Merrick Garland from the U.S. Court of Appeals for the DC Circuit to replace the late Antonin Scalia. The nomination wasn’t considered by Senate Majority Leader Mitch McConnell, who contended that the next President should get to make that call. And now that we’re in an election year, people who were fiercely in Garland’s corner are against President Trump’s nomination of Amy Comey Barrett from the U.S. Court of Appeals for the 7th Circuit to replace RBG.
What’s my take on the nomination? I think it’s fair for the President to nominate Barrett. His 1st term expires at noon on January 20th—some 116 days away. As I stated in the epigraph, I think 1st term Presidents should refrain from Supreme Court nominations in the last 100 days of that term. Had President Trump waited until Columbus Day to make this nomination, I would frown upon it but he’s clearly outside of that 100-day buffer so I’m good with it. President Obama, when he nominated Garland, did so in March 2016…10 months before his term expired and clearly inside of a year left in his Presidency. I agreed with McConnell that the next President should’ve gotten that pick because we were assured that Obama would not President past noon on January 20, 2017 and installing Garland would’ve been him trying to give his political party an advantage in the justice system. While it could be argued that President Trump is doing the same with the nomination of Barrett, which would give the conservative side a 6-3 majority if she is confirmed, it is not known if his Presidency will end on January 20, 2021. He may very well win the election in November and go on to a 2nd term as President.
Why does it matter? It matters because of the politics of the nation and how deeply divisive they’ve become. There’s a literally war of sides in the United States…Black America vs. White America, Liberal America vs. Conservative America, Industrial America vs. Green America, and so on and so on. It matters because of hotbed issues like voting rights, discrimination laws, and abortion. It matters because of the longstanding debate on settled law. The 9 Justices that sit in the Supreme Court Building—or do their work out of the Supreme Court Building because I don’t think they are sitting there because of COVID-19—wield incredible power in this country and the position they hold, like all other major Federal judiciary appointments, is a lifetime tenure. A “Supreme”, as Darby Shaw alluded to the position in The Pelican Brief, has the power to shape American law for generations, and in a nation that’s ripped at the seams right now, that matters. A possible 6-3 majority in the Court could sway high-profile decisions to the conservative side…though technically, Supreme Court Justices are nonpartisan.
What’s my take on the Court? With Barrett’s nomination, and even before she was officially nominated, there have been rumblings that the Court should be expanded to 13 Justices. Most of that talk, of course, is coming from the Blue team side with the thinking that if former Vice President Biden wins the election and becomes President, he can install 4 new Justices and secure a 7-6 Court majority for his side. Personally, I think that’s ridiculous. In some ways, I think 9 Justices is too many and 13 is definitely overkill. But, at the end of the day, 9 is what we have and for the most part, it has worked well at that number so I’m good with 9. What I do think should happen is the lifetime tenure should be stripped. I think Justices of the Supreme Court—and actually all Federal judges—should only be able to serve a maximum of 20 years in their positions. This is part of my argument for term limits in all 3 branches of Federal government—8 years for the President in the executive branch, 12 years for Senators and 6 years for Representatives in the legislative branch, 20 years for Federal judges in the judicial branch—because the nation’s leadership should be reflective of the society at that particular point in time. Anyway, back to the Court. In addition to 20-year terms, the terms should be staggered in a way in which 2 of the 9 positions come open inside every Presidential term…one in Year 1 and the other in Year 3. I also think that every President should get to pick the Chief Justice of the Supreme Court during his (or her, when that time in history comes) term in office. I think this way we get some fresh blood in the Court and unless one of the political parties dominates the Presidency for a long run, there should be parity in the Court.
What’s wrong with the Court? The same reason the Amy Comey Barrett nomination matters is the same thing that’s wrong with the Court: the politics of the nation and how deeply divisive they’ve become. Nothing brings out the worst in Americans than Supreme Court nominations. The arguments I’ve seen on Facebook and Twitter have been downright despicable. The bickering and posturing and grandstanding in the Senate confirmation hearings have always been distasteful. I’m sure this probably goes back much farther but I remember discussing the judicial branch in the late Mr. Zeigler’s Honors Government 12 class at Huffman High. He explained the process of how the judicial appointments went and after class, I asked him what happens if Supreme Court nominees don’t get confirmed. His response: “look up Robert Bork and we’ll talk in 2 days”. I did just that and discovered who he was: the Solicitor General and Acting Attorney General under President Nixon and a unanimously-confirmed judge for the U.S. Court of Appeals for the DC Circuit under President Reagan. In 1987, he was nominated by President Reagan to replace the retiring Lewis Powell in the Supreme Court. Although he was unanimously confirmed by the Senate for the DC Circuit—arguably the next step down from the Supreme Court—he was denied appointment to the Supreme Court as his confirmation vote was 42-58. That vote came after very contentious debates in the Senate over stuff that happened during his time as Acting Attorney General. Former Senator Edward Kennedy excoriated him. Bork’s personal life became a public matter as the press got a hold of his video rental history and ran stories on it. The entire process resulted in Bork resigning from the DC Circuit and gave life to the concept of “borking”. Webster’s Dictionary defines it as “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification”. This has happened a lot since the late 1980s in Washington. Think all of the confirmation hearings for Presidential Cabinet members but mostly for nominees to the Federal judgeship. Just a couple of years ago, there was a very intense nomination process for Associate Justice Brett Kavanaugh who, like Bork, was moving up from the U.S. Court of Appeals for the DC Circuit. All kinds of stuff about his past were revealed publicly and one of his classmates even alleged that he sexually assaulted. It was a crazy process…almost like a nationally-televised circus. He ended up getting confirmed 50-48 along party lines. What’s interesting is that even if Kavanaugh would’ve been denied the seat, he still would’ve been a lifetime Federal judge in the 2nd highest court in the country. I don’t think he would’ve resigned as Bork did. Honestly, now that I think about it, all 8 Justices on the bench have been borked in their confirmation hearings. And with the exception of Chief Justice Roberts and Justices Breyer and Sotomayor, it’s been party-line voting for the Supreme Court. That’s a problem and I think we need to come up with a solution to not make this process so ugly.
This Supreme Court thing will be a hot debate going into the election. I’m sure that Senate Majority Leader McConnell will push for Barrett’s confirmation process to be expedited and the other side will probably try to throw roadblocks in the way for political reasons. The country will be split on this and we’ll probably see some really contentious borking of the nominee, which may really end up being ugly especially with her being a conservative-leaning woman. Hopefully, better days are ahead for the politics of the Court.