by Michael Liss
Judge [Ketanji Brown] Jackson is an extraordinary person with an extraordinary American story[,] … [as well as] impeccable credentials and a deep knowledge of the law…, but I am unable to consent to the nomination. —Senator Ben Sasse (R-NE)
At least Ben was polite about it. The rest of Judge Jackson’s hearing was absolutely awful. If you watched or read or otherwise dared approach the seething caldron of toxicity created by the law firm of Cotton, Cruz, Graham & Hawley (no fee unless a Democrat is smeared) you’ve probably had more than enough, so I’ll try to be brief before getting to more substantive matters.
First, as to KBJ’s chances, the jury is still out. Sasse’s fan dance means the Judiciary Committee will split 11-11, so a parliamentary maneuver will be required to move her nomination to a vote by the Senate as a whole. She just got Joe Manchin on board (leaving Sinema as the only possible Democratic holdout), and she might, maybe, get a vote or two from a Republican.
We should acknowledge that standing up and out of the latrine that Cotton & Co. just dug is a little difficult for many Republicans, even the ones who are about to retire. I mean, who could possibly say yes to a smut-peddling, criminal-coddling, CRT hugger who doesn’t even have a grasp of basic anatomy? The country should be grateful that Republicans finally were able to unearth the truth (having erroneously aided in confirming her to the federal bench twice before). Good grief. It wasn’t always like this.
From Gerald Ford’s nomination of John Paul Stevens in 1975 to Barack Obama’s nomination of Elena Kagan in 2010, there were 14 new nominations, eight of which (Justices Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsberg, Breyer, and Roberts) got a minimum of 78 votes and three more (Rehnquist, Kagan and Sotomayor) at least 63 votes. Presidents generally received deference in their selections unless those selections were particularly controversial (Robert Bork, the only rejection) or unprepared (Harriet Miers, withdrawn by President George W. Bush after getting advice from senior Republicans). Those who use Bork as an all-purpose excuse might want to go back and look at the timeline of confirmations. His nomination was sandwiched by Scalia (98-0) and Kennedy (97-0).
I’m not going to replay the Garland-to-Gorsuch-to Kavanaugh-to Barrett trail of tears, but suffice to say McConnell’s adroit duplicity coupled with Trump’s naked embrace of the idea of “Trump Judges” working for Trump deepened the bitterness beyond repair. We have now come to this: An extremely well-qualified nominee whose confirmation will in no way change the ideological composition of the Court can’t get a fair hearing, much less a dignified one.
What’s the purpose of this, when we know the Inquisition Five (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) will remain in control of SCOTUS regardless?
Part is just politics, both personal and the GOP’s. On the personal side, Cruz, Cotton, and Hawley have the temperament of rattlesnakes to go along with limitless ambition. As to Graham, he needs to check his meds—drooling with anger doesn’t look good for the cameras. All four want time on conservative media to tout their credentials for 2024, and they aren’t the only ones. Rest assured, when the nomination comes to the floor, others looking for a microphone (Rand Paul, Marco Rubio, Rick Scott) will get their shots in as well.
Of course, the individual motivations of Senators are just a part of the story. Grandstanding is always in season in the Senate. What is also going on is that the GOP thinks it’s found a face on which it can plant a whole trope for the Midterms and 2024. (Although the posters may have taken them down for now, Twitter was nearly immediately plastered by @GOP with a picture of Judge Jackson, her initials replaced by the letters “CRT.”) Judge Jackson is soft on crime, easy on child pornographers, and wants Critical Race Theory taught in Pre-Ks. Hate Judge Jackson. Fear Judge Jackson. Bingo, there go the suburbs returning to a Republican embrace.
Let’s assume the GOP’s analysis and messaging turns out to be accurate, and they stomp the Democrats in 2022 and 2024. And, let’s assume that The Five continue to bless us with their unique blend of Judicial Activism combined with a hunger (and the power) to raze past precedents and return to the Eden of Faith, Family, and Fatherland. Just what kind of a paradise are they offering?
Last month, I highlighted several matters before SCOTUS that were attention-grabbing, like the challenge to Roe v. Wade and New York’s 107 year old gun law. This month, it appears I need to add a few others. Loose Republican lips keep reminding us of their priorities.
First, let’s put the little nasty out there. Senator Mike Braun of Indiana criticized the Supreme Court’s 1967 holding in Loving v. Virginia, which declared state laws against racially mixed marriages unconstitutional. Braun’s office tried to claim he was (a) misunderstood, while (b) wrapping the whole thing in a Federalism argument, but it’s out there. A lot of conservatives really dislike Loving, in part because it leads into the even more frightening (and likely soon to be reversed) Obergefell v. Hodges (same sex marriage).
I know, it’s 2022, and we shouldn’t be relitigating this, but, here we are, so, here’s a little background on Loving: Racially mixed marriages have always had an uneasy existence in the United States. By the late 19th Century, as many as 38 states had laws prohibiting them, and beyond whether it was legal, the social opprobrium was intense. In 1958, police entered the home of a young couple, Richard and Mildred Loving, arrested them in their bedroom, and charged them with violating a law that made racial intermarriage a felony punishable by up to 5 years in jail. A judge offered them a deal—leave Virginia for 25 years (not a typo) and he would spare them being sent to prison. It kind of boggles the mind some 60 years later, but, hoping to remain together, and not behind bars, they accepted, and moved to DC. Several years later, they wanted to return to Virginia to be closer to family, but Virginia’s law was still on the books, as similar ones were, in roughly 20 other states. They wrote to Robert Kennedy, then Attorney General, and he put them in touch with folks who would give them legal representation.
The challenge to Virginia’s law wended its way through both state and federal courts, landing in the Supreme Court, where, on June 12, 1967, SCOTUS unanimously ruled: “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”
This is the ruling that keeps Mike Braun up at night.
But, enough about Senator Braun. He’s not even on the Judiciary Committee. Let’s move to someone who is, Marsha Blackburn of Tennessee. She got a lot of conservative street cred out of asking Judge Jackson just what a woman was, but she had her own Supreme Court ruling to dislike, 1965’s Griswold v. Connecticut. There, the Court held that Connecticut’s ban on selling contraception to married couples violated a constitutional right to privacy. Oh, my, do conservatives hate Griswold (and the 1972 Eisenstadt v. Baird, which extended it to unmarried people). Griswold, to them, is the entry drug for all types of privacy arguments—on contraception, on abortion, on any type of personal relations, gay or straight, sexual or not. Privacy is a very dirty word. First, they insist there is no right to privacy in the Constitution (they are good textualists). If the Framers had intended for someone to have a right of privacy in his or her home, they would have stated something akin to “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Second, privacy arguments are just excuses for sinning. People do things in the privacy of their own homes, things Republicans don’t approve of (and surely don’t engage in). Early to bed after a cold bath and 30 minutes with the Good Book is the Republican way of life, and should be everyone’s.
A cynic might say I’m exaggerating the threat, and Blackburn is just playing politics. After all, poll after poll shows Americans overwhelmingly support contraception, and most definitely believe that there is a right to privacy in their own homes. Unfortunately, among the folks that count—The Five and Justice Roberts—virtue is particularly high, and support for either the general idea of privacy or the specific one regarding contraception is considerably more…tepid. We know Thomas and Alito are actively hostile; Roberts has never been comfortable with the logic; Gorsuch only said, during his confirmation hearing, that Griswold was a 50-year old precedent, and Kavanaugh and Barrett were equally opaque, but none of those three have had any difficulty overturning other 50-year old precedents (and Roe, by the way, is 50). Watch out for uncomplimentary references to Griswold in the upcoming decision(s) reversing Roe and Casey. I suspect that Senator Blackburn will be pleased that immoral behavior will be discouraged. For those who feel webcams in pharmacies might be a little bit too much, I suggest stocking up on whatever supplies are necessary, and check the expiration dates while you are doing it.
Since the states are laboratories of democracy, it seems that this is an excellent segue to a third matter that has popped up over the last few weeks, the Independent State Legislature Doctrine. This one regards your right to vote, and is a doozy.
We all know that the Supreme Court’s hostility to voting rights has increased with each new conservative Justice added, but there’s more to quashing voting rights than just averting your eyes on discriminatory tactics. Several of the Justices have begun to embrace an even more innovative technique: claiming that State Legislatures have the sole right to determine the time, place and manner of your voting. Before you go any further, focus on “sole right” because the Justices mean what they say—the sole right not merely to make policy and be free of virtually all federal oversight (SCOTUS insists on deferring when voting rights are involved), but the sole right to be free of both a Governor’s veto and the highest state court’s determination of state constitutionality. The application of ISLD makes the State Legislature the first and last word on voting. The party that controls the State Legislature can do anything it wants to perpetuate itself in power. You can even make the argument that state constitutional provisions guaranteeing voting are null and void, since only the Legislature has the authority in the first place.
Too kooky, right? Rights without a forum to vindicate them? Nope. Four Justices have explicitly embraced at one point or another the ISLD: Thomas, Alito, and Gorsuch in the 2020 election litigation involving the Pennsylvania Supreme Court’s authority to interpret a state constitutional right to vote, where it came to extending absentee voting because of the pandemic, and Kavanaugh in a Wisconsin case from the same period. How about Barrett? We don’t know, as she didn’t rule on the election cases, being new to the Court, but we do know that Roberts expressed some approval for ISLD in a dissent in a 2015 Arizona case.
Where did this come from? The theory has been around for a while, but it is firmly contradicted by precedents, some over 100 years old. It was raised again in the rather extraordinary challenge by North Carolina’s Republican-dominated State Legislature to the state courts’ redraft of its Congressional map, which the court found violated the state’s constitutional ban on partisan gerrymandering. In that case, Moore v. Harper, although the GOP was turned aside, both Alito and Kavanagh expressed interest in the ISLD.
You don’t need to be a mathematician or a seer to think that, sooner or later, the right case could come along, and a motivated conservative bloc, joined by Barrett or Roberts or both, will situationally apply this theory to align with their voting preferences. Let’s hope it doesn’t change an actual result. That could be the biggest blow to democracy since…January 6, 2021.
Sometimes we look at politics as just a form of entertainment, a game of back and forth, of tactics and slogans, and we believe that not all that much will fundamentally change when the flag passes from one team to the other.
“Sometimes” are over. To turn your eyes away to what is happening is to give consent. Judge Jackson didn’t. She looked straight ahead, and hung in. We should follow her example.