The confirmation process is now over. A Supreme Court Justice who pioneered in the evolution of gender jurisprudence has now been officially replaced on the Court by a "handmaiden" who seems poised to turn back that evolution to a point preceding the Stone Age--if this is any indication, anyway.
A brilliant scholar and thinker has been replaced by someone who, in her confirmation hearings, struggled to give evasive answers to legal questions with obviously transparent answers.
A pillar of nonpartisan, independent integrity has been replaced by a right-wing apparatchik who is fully prepared to help subvert the rule of law to abet the unlawful efforts of Donald Trump to keep a job he never should have had, and does not deserve--but which he is prepared to do anything he can to keep.
Where does that leave the current position of the Court in our constitutional order, and the people's perception of it? For that, I need only direct you to this op-ed piece in the New York Times, written by two former law clerks of now-retired Justice Anthony Kennedy. The authors self-identify as "liberals." But they were employed by a Justice who was appointed to the Court by Ronald Reagan, during an election year, and confirmed by a Democratic-led Senate. That should tell you how far the institutional integrity of the Court has slid in the past three decades, especially with Mitch McCONnell's foot on the accelerator.
Oh and, by the way, where were the Democrats in the middle of all of this? Where, all too often, they usually are: all over the place. True, some of them asked tough questions, and Sheldon Whitehouse of Rhode Island gets special mention for grease-boarding the sordid history of dark money in conservative Court-packing efforts (a history that is even more sordid than we thought). On the other hand, we were also treated to this: proof that the senior Senator from California doesn't understand that true greatness is knowing when to get off. As if this wasn't bad enough.
True also, they did boycott the Judiciary Committee vote to send the nomination to the Senate floor, in an attempt to stop the vote by creating the absence of a quorum. But guess what? The Republicans voted to send the nomination along anyway. Fighting by the rules means nothing if the other side sheds the rulebook.
Do the Democrats finally get it? Do they understand that they have been, whether they like it or not, engaged in war by other means, and that their lack of an appetite for combat has made it an asymmetric war, one in which their mounting losses threaten not just them, but all of us?
I wish I could say that the answer is "yes." But I'm not sure. And a big chunk of that uncertainly stems from the fact that even I'm not sure what they should do at this point.
The most-discussed potential remedy takes a page out of Franklin D. Roosevelt's playbook: packing the court with progressive justices to undo the chicanery that McCONnell and his crony colleagues have engaged in over the past four-plus years. Even moderate Democrats like Chris Coons seem to be sold on the idea.
Me? I'm kind of agnostic on the idea. That's at least in part because the idea polls poorly, which is why I think Joe Biden was smart to kick the proverbial can by announcing that he would, if elected President, appoint a commission to study reforming the federal judiciary. But it's also because I see it becoming a bottomless pit of retaliation, with successive Congresses of each party adding justices until the roster of the Supreme Court has more members than Congress.
Don't get me wrong: I'm not advocating doing nothing. Far from it, as you'll see if you'll read further. But we have to do something that makes sense, in both the short and long run. The Republicans have made the Court a vehicle for the promotion of raw power. Our response to that has to be as raw and as powerful as the steps they’ve taken. Let's start with their favorite subject: money.
Constitutionally, the Justice's salaries are guaranteed to them. Fair enough. But everything else? Their building? Their staff? The various services related to the functioning of the Court? Well, that's under the control of the political branches. It might be useful for a Democratic Congress and President to, ahem, remind the constitutionally-salaried Justices of that fact. It might be prudent for the political branches to ask whether, in a fiscally and pandemically troubled time, whether the Court's work is giving the Constitution, and the general welfare of the people that the Constitution is designed to promote, whether the Court is giving the people the best bang for the buck. I'm not advocating bribery, but it's completely fair for Congress to use the power of the purse to keep the Court from going too far off the grid of our basic law and the intentions (yes, the original ones) that lie behind it.
Is that too edgy for you? Well, maybe it is. I'm not insisting on it, any more than I'm insisting on or forbidding the adding of Justices to the Court. How about this: we subject the Justices to the same canons of ethics, including rules on recusals, with which every other judge (and attorney, myself included) must comply. Right now, whether you can believe it or not, the Court's Justices are not bound by any ethics code. Liberal or conservative, they all should be.
And any code to which they are bound must not only specifically reference the power of Congress to impeach federal judicial officers, but provide for the power of Congress to enforce changes in the Court's rulings that are flatly wrong as a matter of law or fact. This would prevent obviously corrupt actors like Brett Kavanaugh, who seems disposed to both sloppy, unfactual reasoning and extra-constitutional results, from doing consequential damage to the rule of law. And avoid battles between the Court and various third parties such as this. As things stand now, all three Trump-appointed Justices are in a position to help him stay in office by way of specious, post-election litigation. Ethics code or now, if they do not recuse themselves from the consideration of such litigation, they should be impeached. Full stop.
But, maybe, just maybe, this is all premature. Maybe we can fall back on the old saw that the Supreme Court follows the election returns, and that a big blue wave might throw cold water on many of the current Court's jurisprudential fantasies. Maybe this is an indication that the potential for that to happen is in fact there. Maybe we can take comfort from the wisdom of think pieces like this one.
The truth is, I'm not sure what we should do. I'm only convinced that we need to do something.
And we need to do this above all:
VOTE!
And no, this is not my last pre-election post. I'll have more to say tomorrow. Stay tuned, as we used to say in broadcast media. Or, as Rachel Maddow would say, watch this space.
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