Supreme Court nominations Archives

I wrote this with my friend and author, Kathy Aspden. If you haven’t read her books, have a look. She is a great writer.

By Kathy Aspden & Christine Merser

In a speech in August 2016 in Kentucky, McConnell would say: “One of my proudest moments was when I looked Barack Obama in the eye and I said, Mr. President, you will not fill the Supreme Court vacancy.”

Thirty-two Republicans put out positive statements in 2016 to support Merrick Garland’s nomination.

When McConnell stamped the it’s not happening on it all, Democrats came out full force— with words. Schumer called it a travesty, and others said the sitting president should fill the empty seat. But as in most things, Democrats had no tool in the tool box to change what Mitch chose to do. So many words, so many referenceable quotes from 2016.

Mitch broke the law. Or if you are generous and sit on the outside of liberal views, he ignored his responsibility to run hearings and put the process in place—which is his fiduciary obligation as majority leader. And so here we are, four years later, and McConnell is saying the court seat will be filled by this sitting president. Everything he said last time no longer fits into his agenda. Yet, he has no shame, no qualms, no fear in reversing what was a bad decision then.

So now, all the Dems will reverse what they said four years ago, and the Republicans will follow the pied piper of corruption and change their tone as well. Lindsay Graham is interesting. Not the sharpest knife in the drawer, he actually brought up this scenario in 2018 during a forum with The Atlantic, and said, “I’ll tell you this – this may make you feel better, but I really don’t care – if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election.” All lies.

But this is not the time to call our people to the streets. This election will be decided by those who are already hesitating to put their toe in our waters—fearing it might look okay, but perhaps it’s boiling after all. Law and order, as an issue, is not working well for Trump, and a full-out protest will give legs and fuel the fire. And, then there is the hypocrisy of every Democrat from 2016 changing their stand when it suits them in 2020. Do we sink to the basement level that the Republicans have renovated as the penthouse? No we do not! Not on our watch.

Let’s do this with intelligence and integrity. Let them nominate some half-qualified person. Fight it on the stage during the hearings, smartly. Ted Cruz (one of the Trump short-listers) as a Supreme? Make our day.

If we do this well, we will win this election—which takes precedence over everything else right now. Ruth Bader Ginsberg’s death could surely give Trump what he needs to change the course of a conversation that’s currently not working for him. Let’s kick the legs out from under his potential unrighteous fury.

Oh and later, when the senate is won and the presidency has a reasonable, capable, semi-honest working body (which we’ve come to realize is the best we can hope for in government), we can up the Supreme Court seats to eleven and wave at Mitch McConnell across the aisle.

A Woman for the Supreme Court? Not So Fast.

Just as there is no crying in baseball, there is no diversity in the Supreme Court. Look, I’m of the female gender (although sometimes I act more manly with my sweats on than I would like), and so I can have this point of view and voice it without recriminations in this moment in time. Stand aside guys, and let me handle this.

I did a little checking. There are no qualifications for being a Supreme Court Justice. It so happens that all justices so far have been lawyers, but even that isn’t a requirement. When the President determines who he wants to nominate, past protocol calls for him to consult privately with the two senators from the state in which the nominee is from. Other than that, anything goes. (In checking it out, I did learn that we could have as many justices as we want on the court; even the number of justices is not dictated. Interesting.)

I want to see diversity in things, don’t get me wrong. I liked diversity in my daughter’s upbringing and classroom make up. I liked that she was not just surrounded by perfect, brilliant, funny, beautiful children with fabulous parents just like herself. I like to see diversity in colleges where the education is not equal and all points of view in a classroom filled with non exact answers makes it all the more interesting.

But I don’t care about diversity in quarterbacks, brain surgeons, meat inspectors and now, Supreme Court Justices.

Here is what I do want. I want the best legal mind in the country. I want the best writer in the country. I want someone who has had a successful (meaning not overturned so much in the higher courts) history in interpreting the law. I want someone who is not 22 and just out of law school, but not so old that they had to give up diet coke to keep their mind sound like me. This is not a lot to ask, is it?

Remember Harriet Miers? Remember Alito? Let me give you a quote to chill your bones.

“When I nominated Alito, we thought we’d be getting a justice who would follow the moral tone set by my administration,” Bush said, speaking to reporters jogging alongside during the president’s three-hour morning bicycle ride. “Frankly, from what I’ve seen so far, I don’t think that’s what happening, and so I’m going to withdraw Alito’s nomination as soon as I get back to the office.”

News flash. Judges are not about following the President or his moral tone anywhere. Justices are about following the constitution put together by simpler, smarter men than have followed. It’s about putting personal morals and beliefs aside and trying as imperfectly as human nature allows to interpret the constitution as best his or her mind can conjure. That is the whole point about a lifetime appointment, so they will not be tainted by personal needs that call for them to make decisions not in line with the basic premises of our constitution.

Let me save you some time, Mr. Pres. I know you’re busy and me, not so much. Here is my suggestion for the nominee. Note that his only drawback according to the news, is that he is a white man. Ok, his name sounds stupid too, but that’s not his fault. “My name is Cass Sunstein, and I’m a United States Supreme Court Justice.” Doesn’t have a great ring to it, but we’ll keep him out of places where he needs to make that statement.

Cass Sunstein, Professor, Harvard Law School and Head of Office of Information and Regulatory Affairs

BIO: Age: 54. Harvard Law School graduate, clerk for Justice Thurgood Marshall. One of the nation’s leading legal scholars. Author of numerous ground-breaking books on constitutional law and behavioral economics. Recently left long-time post as University of Chicago Law School professor to join faculty at Harvard Law.

Here is what his supporters say

— He would be a judicial rock star on the court who could easily go toe-to-toe with Roberts and Scalia and leave a lasting legacy for Obama.

— He is collegial and supported Roberts’ nomination to the Supreme Court.

— He is a close adviser on legal issues to Obama, who deeply admires his accomplishments.

Here is what the critics say

— As a white man from the rarefied world of academia — who graduated from and taught at elite educational institutions — he flunks the “diversity” criteria.

I rest my case.