Courtship from Hell

Please forgive my loan

Jan 6th Stop the Steal Symbol

Sam Alito’s House

Courtship from Hell

A Broken System of Long Appointments and Partisan Judges

Our highest court is rife with what would be criminal corruption in most democracies … as well as festered with conflicts of interest. Without enforceable ethical rules, the Supreme Court’s approval rating has never been lower. The most blatant evidence: Justice Clarence Thomas’ deep wink-wink financial benefits – through the auspicious of Leonard Leo’s rightwing Judicial Education Project, a nonprofit group he advises, and by means of more direct travel, real estate benefits and strategic loan forgiveness – to Samuel Alito’s dramatically open embrace of political philosophies reflecting extreme rightwing bias (evidenced by flags reflecting support for while Christian nationalism and the upside-down US flag, an unambiguous “stop the steal” symbol).

“Leo’s relationship with Thomas is [also] under scrutiny after Leo arranged for Virginia ‘Ginni’ Thomas, the Supreme Court justice’s wife, to be paid tens of thousands of dollars for consulting work just over a decade ago, specifying that her name be left off billing records, according to documents reviewed by The Post. Reporting by The Post shows that Leo instructed the conservative pollster Kellyanne Conway in 2012 to bill the Judicial Education Project, a nonprofit group he advises, and use that money to pay Ginni Thomas. Leo told Conway that he wanted her to ‘give’ Ginni Thomas ‘another $25K,’ the documents show. He emphasized that the paperwork should have ‘No mention of Ginni, of course.’” Washington Post, May 5, 2023

As the virtual carte blanche rulings against meaningful gun control, decisions to support states’ efforts to disenfranchise voters and the reversal of Roe vs Wade attest, the Supreme Court changed daily life in America in a huge way. It’s July presidential immunity ruling in Trump vs United, a case that seems to fly in the face of basic democracy, paves the way for autocracy without a parallel judicial check and balance… under the guise of exempt, colorable, “official acts.” Whatever else is said and done, the power of a president, to influence and literally control our future for decades with lifetime federal appointments, is staggering and unstoppable today.

Writing for the Journal of the American Bar Assn (October 31st), Berkeley Law School Dean and Professor, Erwin Chemerinsky, explains the recent history of such judicial appointments: “Between 1960 and 2020, there were 32 years with Republican presidents and 28 years with Democratic presidents. In this time, though, Republican presidents selected 15 Supreme Court justices, while Democratic presidents chose only eight.

“Much of this was a result of the accidents of history as to when vacancies occurred. Richard Nixon selected four justices, while Ronald Reagan and Donald Trump each picked three. But no Democratic president since Harry Truman has selected more than two justices. Jimmy Carter had no vacancies to fill and President Joe Biden only one. By contrast, every Republican president during this time, except Gerald Ford, picked at least two justices.

“Put another way, while Trump chose three justices in four years, the prior three Democratic presidents—Jimmy Carter, Bill Clinton and Barack Obama—served a combined 20 years in the White House but selected only four justices in those two decades… It is easy to see how much presidential elections matter, for the Supreme Court, for constitutional law and for people’s lives…” This reality makes Donald Trump, with his 6 to 3 ultra-conservative court, possibly the most important president in modern history. Against a precedent of avoiding election rulings soon before an election, Trump’s lower court appointments and recent “shadow docket” emergency rulings (where no majority opinion is made) may ultimately decide the November 5th election.

“[Under the guise of an emergency/shadow docket ruling, where the majority did not post an opinion, an 11th hour, a] divided Supreme Court cleared the way Wednesday [10/30] for Virginia officials to remove about 1,600 voters from the state’s registration rolls less than one week before the presidential election.” ABA Journal, October 30th.

“In recent years, the court’s conservative majority has been more willing to use its power to intervene in ongoing litigation through its so-called shadow docket. Legal scholars and liberal justices have criticized the practice. The court’s denial of the last of a slew of emergency bids to pause new Clean Air Act regulations suggests the justices are rethinking how they wield these emergency orders.” Jess Bravin for the October 31st Walls Street Journal. What’s worse, the machinations behind extending this judicial legacy are startling, as Ian Prasad Philbrick, writing for the October 31st The Morning (a NY Times newsfeed), explains:

“In recent years, judges have tended to retire in time to let the president they prefer fill their seats. The oldest sitting justices today — Clarence Thomas, 76, and Samuel Alito, 74 — are Republican appointees. If they stepped down during a second Trump administration, the president could choose younger replacements who would cement conservative control of the court for decades… What about lower courts?

“Judges can serve for life. So the more a president appoints, the more he or she can shape the country. The Supreme Court hears only about 80 cases per year, meaning that lower courts are often the final arbiter on many issues. They set precedent on criminal justice, bankruptcy proceedings, corporate disputes and antitrust enforcement, and on whether federal laws and rules are constitutional.

“In a typical four-year term, a president replaces about one-quarter of the country’s 870 active federal judges, across both federal district and appeals courts. Trump filled 231 vacancies, and President Biden may equal that number before the next Congress takes over… Partly as a result, Republican and Democratic presidents have each appointed about half of the judges on federal courts. The appeals courts lean slightly Republican, while the district courts lean Democratic (if you count senior judges who work less but still hear cases), according to Russell Wheeler of the Brookings Institution.”

As occurred during the Obama presidency, red state Senators blocked his Supreme Court nominations on a strictly partisan basis. When Trump took office, the floodgates for MAGA judges and justices swung open. Lifetime appointments of biased judges (for which there are ethics rules for federal appointees, but Supreme Court nominees are exempted) combined with an ability for a biased Senate majority to ensure partisan purity above duty to country for a very long time. Add to this horrible is the recent trend of rightwing jurists applying an ambiguous interpretation standard of “originalism,” requiring citing historical precedents to vet constitutional decisions… making judges historical researchers. That was never envisioned by our Founding Fathers. Our federal judicial system is a mess! No one can count on common sense or past Supreme Court rulings with any confidence anymore. Planning becomes a quagmire of partisan ambiguity.

I’m Peter Dekom, and without enforceable ethical rules for all federal judicial appointees, term limits and a mechanism to prevent the bias of extremes from dominating court rulings for decades, our federal courts will continue to devolve into the cacophony of judicial farce.