The retirement of Justice Kennedy has everyone on the liberal side upset, up in arms, mobilizing, in a tizzy, ready to fight to prevent the Court from becoming the unbridled arm of the right-wing force that’s doing such damage to the nation nowadays from all three branches of the American government.
It could be that some of these fighting plans make strategic sense. But I’m not clear how they’ll play out to make things better. And having watched the Democrats fight and lose so many battles I think could have been won, I do not have confidence that there’s strategic wisdom in the plans I’ve heard about.
I’ll hope that my lack of confidence is misplaced.
In the meanwhile, I’d like to present an idea for a fight that does seem to me worth fighting.
It has been a huge mistake, I believe, for the Democrats to have acquiesced in a set of rules, governing the confirmation process, that simply have enabled the right-wingers to create their ideologically extreme Court.
Let’s begin with something that helps expose the sham that this confirmation process has become.
The Sham of Collins, Trump, and Roe v. Wade
The sham has lately been dramatized by Susan Collins making her widely-reported comment about an anti-Roe-v-Wade justice being unacceptable; and by Trump saying that he wouldn’t be asking the people he interviewed for the Supreme Court seat where they stand on Roe v. Wade:
I don’t see how these assurances amount to anything whatever.
First, Trump might not ask any litmus-test questions, supposedly “honoring” some American norm about how presidents are supposed to act with such potential nominees. But Trump gets a list from the Federalist Society, and there’s no norm that prevents them from making sure that any judges whose names they put on the list they give the President aren’t reliable votes on the issues they care about. So, Trump and all the rest of us should know –without asking– where these people stand.
Second, we’ve seen for years that a comment like Collins’ ““I would not support a nominee who demonstrated hostility to Roe v. Wade” need not be anything but political posturing. Because what we’ve seen is that at their hearings, these nominees don’t “demonstrate” much of anything of their feelings, convictions, prejudices, allegiances, pre-conceptions, leanings, etc. They speak the mealy-mouthed speak that seems to suffice for the occasion.
So, unless someone can show me how it would work otherwise, I can imagine that Trump will not ask, but he’ll know anyway, and that Collins will not see any hostility “demonstrated,” and will be perfectly safe, politically, in voting for the nominee. And when the issue arises before the court, it will turn out that Collins helped overturn Roe v. Wade, but has no fingerprints on such a future development.
All of which brings into clear focus how worthless the confirmation process has become.
It also illuminates how the Democrats have acquiesced unnecessarily in that worthlessness. They need acquiesce no longer.
Here’s Where the Battle Might Fruitfully Be Joined
They all sound so moderate when they’re confirmed, and then they vote like the right-wing ideologues that they are.
(Remember Justice Roberts was just going to “call balls and strikes”?)
They can get away with it only because somehow people have bought into the nonsensical fiction that somehow it would be a violation of judicial impartiality — or something — for these justices to speak their actual minds on issues that might come before the Court.
Really, is it not nonsense to say that, because a justice might have to decide on an issue in some future case, they ought not express themselves about that issue beforehand?
If that did make any sense, then by the same token all the other justices on the Supreme Court would be obliged to disqualify themselves from hearing a case on any issue which has come before the Court before. After all, have they not ALL written or concurred on opinions on those previous cases?
If it’s OK for the already-sitting justices to have made their views public previously, can anyone give a sensible reason why it would not be OK for a nominee to the Court to express his/her views as well?
At the very least, they should be REQUIRED to answer questions in the form: “What is your opinion of the decision the Court handed down in such-and-such a case? Do you agree with the majority decision? With the dissent? Did you have some other view?”
The Democrats should hammer anyone who declines to answer, challenging them in public hearing: “If other justices on the Court have already expressed their views, and are still qualified to hear future cases, what justification can you offer for concealing your views from the United States Senate and the American public?”