The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019

Tag: supreme court appointments

On The High Court, Affirmative Action Isn't Only For Republicans

Every day since President Joe Biden reiterated his pledge to nominate the first Black woman to the U.S. Supreme Court, conservatives have reacted with the most predictable jeers and complaints. We've heard all these tiresome whines so many times before. But for some strange reason, the right-wing worries about "reverse discrimination," tokenism and lack of qualifications only apply to minority nominees, and then only when those minority nominees are Democrats.

When former President George H.W. Bush chose Clarence Thomas to fill the high court seat left vacant by the retirement of Thurgood Marshall, did anyone actually believe that the former equal employment bureaucrat was the most qualified possible nominee? Bush denied that Thomas was a "token," but the president's endorsement of him as "best qualified at this time" seemed lukewarm at best. Setting aside Anita Hill's entirely plausible testimony about his alleged sexual harassment of her, Thomas carried a thin resume of judicial achievement and scholarship, receiving the lowest possible "qualified" rating by the American Bar Association.

But Thomas was an ideologically reliable conservative — an extremist, in fact, as we now know — and he was Black, which provided convenient cover for his hostility to civil rights. So, this "affirmative action" hire, achieved at the expense of every other possible nominee of any background, disturbed conservatives not at all. They defended him with absolute fervor and ferociously denounced any opposition as racist. (Thomas played the race card too when he accused his opponents of "a high-tech lynching.")

Bush wasn't the first Republican president to apply such an exclusionary — or was it inclusionary? — criterion to a Supreme Court appointment. His predecessor and partner Ronald Reagan had promised during the 1980 campaign to name the first woman to the court, for the utterly sensible reason that vital institutions should reflect the society they serve, including the female half. At the time, there wasn't even a women's lavatory near the courtroom.

This instance of affirmative action for women, by definition excluding all men from consideration, raised not a word of objection from Reagan's reactionary base — who disliked Sandra Day O'Connor only because they correctly suspected she wouldn't overturn the Roe v. Wade abortion rights precedent.

Five years later, Reagan got the chance to choose again when Warren Burger retired and was replaced as chief justice by William Rehnquist. The Gipper's short list was so short that it apparently included only one name he took seriously, Antonin Scalia. Aside from Scalia's rigid 17th century worldview, what recommended him was that, as Reagan put it, the judge was "of Italian extraction." Yes, the iconic conservative president based his choice on the candidate's ethnic background. Or as his former White House counsel Peter Wallison quoted him: "We don't have an Italian American on the court, so we ought to have one."

As Wallison described the process, that was the bottom line for Reagan, who asked about Scalia's ethnic background, and then spent no more than 15 minutes interviewing him for the job. "I think [Reagan] felt that it would be great to put an Italian American on the Supreme Court," Wallison later told an oral history interviewer.

Such sentiment doesn't bother me nearly as much as Scalia's "originalist" jurisprudence, which always struck me as both unfaithful to the Founders' intentions and intellectually ludicrous. What is notable, however, is that nobody ever complained that Reagan somehow violated the Constitution or American values by going ethnic — with a highly political calculation that shored up the Republican base in a conservative Catholic community.

Fulfilling the aspirations of a party constituency — and expanding the definition of American to include the previously excluded — is only bad when a Democrat does it. Republicans get away with playing ethnic political games, including the toxic versions favored by former President Donald Trump, but they shriek furiously when Democrats attempt to redress historical injustices that are no longer acceptable.

The Black female judges that Biden is considering to replace Justice Stephen Breyer are all exceptionally qualified and able. That they have ascended to this level in a society that consistently undervalues them should tell us just how qualified they are.

So, as Jordan Weissman slyly noted in Slate, it is perfectly sound for Biden to follow in Reagan's footsteps by bringing diversity to the Supreme Court with excellent female candidates of color. And if Senate Republicans have any decency — rather than their usual urge to foment racial paranoia — they would say so too.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

This Supreme Court Disaster Didn’t Have To Happen

What once may have sounded like a distant and wonkish abstraction —  namely, the nature of future nominees to the United States Supreme Court — is now upon us as a rapidly worsening catastrophe.

Within the past few days, owing to the seat stolen by Senate Republicans for Neil Gorsuch in 2017, the high court has upheld Donald Trump’s discriminatory travel ban, enabled the deception of desperate women by anti-choice “counseling clinics,” and inflicted a stunning blow from which the American labor movement may never recover.

And yesterday Justice Anthony Kennedy sent a letter to the White House announcing his plan to retire from the court on July 31, which will deliver another seat to a Trump appointee. What that might portend for civil liberties, human rights, consumer protection, industrial regulation, and decent government is difficult to contemplate. But suddenly the most outlandish dreams of the far right are much closer to being realized.

Despite his reputation as a “moderate,” Kennedy was in truth a very bad, mostly right-wing judge and a dim intellect, as his notoriously senseless Citizens United opinion proved. His record on the court was so bad, observes the astute judicial analyst Ian Millhiser, that even a Trump justice may not do much worse. Those who believed that Kennedy wouldn’t surrender his seat to this dangerous executive overestimated his character.

The endless reign of injustice that stretches before us is hardly what most Americans want or deserve, at least as measured by the 2016 election results. If that presidential election was “a referendum on the future of the court and thus the country,” as Trumpist pundit Hugh Hewitt crowed in The Washington Post, the Republicans lost by more than three million votes. And yet they won control of the high court and much of the judiciary for perhaps a generation to come.

As you imagine a nation without reproductive rights, voting protections, or environmental laws, are you looking for somebody to thank? It isn’t hard to compose a list of those responsible for the present disaster, from the ruin of the Supreme Court to the torment of children on our borders and a thousand other disasters large and small. Such a list could include Hillary Clinton herself and her clueless campaign staff. But at least the Democratic nominee tried to warn us about the consequences of electing Trump, including his potential perversion of the courts.

Even more culpable than Clinton, perhaps, is anyone who told voters that she didn’t deserve their support; anyone who complained that she was the same as Donald Trump or even worse; anyone who bloviated that Democrats are no different from Republicans; anyone who urged a ballot for Jill Stein as a way to advance progressive politics and achieve moral hygiene; and anyone who said that electing Trump might even “bring on the revolution.” Trump’s tiny, almost accidental margin in the Electoral College can be directly attributed to voters who acted out their “protest.”

It is now clear that we will endure the consequences of their stupidity for a long time, as will our children. We all ought to have known better after the 2000 election, when a few handfuls of ‘protest’ ballots (and a crooked Supreme Court majority) smoothed the disastrous Electoral College victory of George W. Bush. Will we learn the lesson this time?