The Battle to Appoint Heavily Biased, Partisan Judges

The 2020 Census looms large in the scheme of partisan politics. Way more than half of Americans are centrists or left-of-center. Yet conservative legislatures – long before the major shift in demographics that are turning the nation into a majority of minorities – have used their power to control redistricting and, in the wake of a Scalia-era Supreme Court that threw out restrictive voting regulations in states with a history of discrimination, reinstated laws that effectively limit minority access to the polls. Without the resulting gerrymandering and voting barriers, the conservative factions (which control more than half the state legislatures and governors) would have long-since been swept from power.

That upcoming Census will generate what demographers already know: the white protestant traditionalists that make up the backbone of the American conservative movement will be relegated to a distinct minority, making sustaining their gerrymandered districts that much more difficult. Smelling the inevitable shift, conservative legislatures (including Congress) and a great many governors are looking to find a way to carry their legacy well past that Census by making sure that the courts, particularly state and federal appellate and supreme courts, are administered by right wing conservatives for as long as possible. Their goal is clearly stated without a hint of shame or remorse: extend the conservative brake on social change for as long as possible and make Evangelical Christian values the law of the land.

We have seen how Republicans are fighting what they see as a lame duck Democratic president’s nomination of Merrick Garland, a neutral centrist by any analysis, to replace Antonin Scalia on the U.S. Supreme Court, a fight that probably would not have occurred in a Republican-dominated Senate had the appointment been made by a lame duck Republican. But the battle to control the highest appellate courts at the state level, where legislatures are GOP-dominated, seems to parallel a battle to keep the relevant judges off the bench to the extent they do not toe the ultra-conservative line. We even see the same efforts in states dominated by Democrats promulgating liberal policies.

“Nowhere is the battle more fiery than here in Kansas. Gov. Sam Brownback and other conservative Republicans have expressed outrage over State Supreme Court decisions that overturned death penalty verdicts, blocked anti-abortion laws and hampered Mr. Brownback’s efforts to slash taxes and spending, and they are seeking to reshape a body they call unaccountable to the right-tilting public.

“At one point, the Legislature threatened to suspend all funding for the courts. The Supreme Court, in turn, ruled in February that the state’s public schools must shut down altogether if poorer districts do not get more money by June 30.

“‘A political bullying tactic’ and ‘an assault on Kansas families, taxpayers and elected appropriators’ is how the president of the Senate, Susan Wagle, a Republican, responded to that ruling, which was based on requirements in the state Constitution. Mr. Brownback spoke darkly of an ‘activist Kansas Supreme Court.’

“In March, in the latest salvo, the Republican-controlled Senate passed a bill to authorize impeachment of justices if their decisions ‘usurp’ the power of other branches. But the climactic battle is expected in the November elections, when conservatives hope to remake the seven-member Supreme Court in a flash, by unseating four justices regarded as moderate or liberal.

“Partisan conflict over courts has erupted in many of the 38 states where justices are either directly elected or, as in Kansas, face periodic retention elections, without an opposing candidate. As conservatives in Washington try to preserve a majority on the federal Supreme Court, politically ascendant conservatives in several states are seeking to reshape courts that they consider to be overly liberal vestiges of eras past.

“‘We’ve seen this tug of war between courts and political branches all around the country,’ said Alicia Bannon, a senior counsel at the Brennan Center for Justice at New York University.

“Television spending in the election of two justices in Arkansas on March 1 reached $1.2 million, and candidates attacked as being too cozy with trial lawyers were defeated there, in part with money from outside business interests.

“In Wisconsin, where a court seat will be [was] filled in an election on April 5, ads sponsored by out-of-state groups from the left and the right have helped push total campaign spending to more than $2.6 million, according to data gathered by the Brennan Center and Justice at Stake, a nonprofit group in Washington that promotes judicial integrity.

“On the other side, unions and plaintiffs’ trial lawyer groups last year spent about $2.9 million in Pennsylvania on television ads that helped elect Democratic candidates to three Supreme Court seats.

“In Oklahoma, where the court is under attack for ruling that a Ten Commandments monument must be removed from the Capitol, bills are being considered that would give the governor and legislative leaders more control over the selection of justices. In Georgia, a Republican bill some described as ‘court-packing,’ to increase the number of Supreme Court seats, has passed the General Assembly.

“Driving the conflict in Kansas is the recent dominance of conservative Republicans led by Mr. Brownback. Many legislators say the courts have overstepped their role by ruling that cuts in school funding violate the state Constitution’s guarantee of a basic level of education.

‘If you’re going to make political rulings, then you should be politically accountable,’ said Senator Dennis Pyle, a sponsor of the bill to broaden the grounds for impeachment.” New York Times, April 1^st. In the end, the American system of checks and balances, the essence of our form of democracy is at state… and with it the viability of the entire judicial system. Compounding this desire to stop courts from interpreting state and federal constitutions into a modern era is the profound difficulty of amending our federal Constitution.

Among functioning democracies, the United States has the most cumbersome requirements for constitutional amendment of all of them. In a heavily polarized country, the current ability to amend that esteemed document is non-existent. To give you an idea of how tough it is to change the federal Constitution, consider this reality. The 27^th Amendment – an innocuous provision which does not allow Congress to raise their salaries for their current session – was proposed in 1789 and passed, over 200 years later, only in 1992.

Thus, when politicians cry, “if they want change, let them amend the Constitution,” they are laughing inside knowing that will never happen. Supreme Court justices – those appointed by Republican and Democratic presidents alike – have been forced to apply Constitutional mandates into a modern era. Picture our Fourth Amendment – dealing in part with unreasonable searches and seizures – being non-applicable to electronic surveillance because there was no electronic surveillance when that amendment was passed in 1789. Fortunately, our courts have found otherwise. In the end, the bullying comes from a desire to deny support for a neutral judiciary, turning it instead into an instrument of the then-dominant political party. Another nail in the coffin of our unraveling political system and evolution into an unabashed plutocracy.

I’m Peter Dekom, and the accelerating proclivity of politicians to foment only their most extreme positions, avoiding neutrality and compromise, may well spell the demise of our entire country.