The Audacity of Hoping for a 7-2 Majority

 by Sherry F. Colb

After Justice Stephen Breyer announced his planned retirement as Associate Justice on the U.S. Supreme Court, President Biden made the following announcement:"The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court." 

Predictably, right-wing histrionics were soon to follow.

Ilya Shapiro of Georgetown Law School had named his preferred choice from among Democrats (a South Asian man) and in response to Biden's announcement tweeted that Shapiro's choice "doesn't fit into the latest intersectionality hierarchy so we'll get [a] lesser black woman.” Because Biden had yet to select his nominee, the plain implication of what Shapiro said was that no Black woman exists who is as qualified as the man that Shapiro had recommended. 

Shapiro is now on administrative leave from Georgetown to allow the school to investigate his tweets. For what it's worth, I oppose the move to fire him for what he said. Sharing thoughts, including stupid and offensive thoughts, is what professors do. Having the freedom to get things wrong is what enables professors to sometimes get things right. Idea people need a "safe space" in which to think and write and speak, and firing people for what they say creates the opposite of a safe space. I would make the same point regarding the Georgetown adjunct professor who lost her job last year after twenty years of service for a private conversation over a hot mic. It would nice if Georgetown Law School figured out a way to express its disagreement other than by firing faculty members unprotected by tenure.

Nonetheless and despite my opposition to terminations for speech, I agree that what Shapiro said was offensive. Similarly but more blandly offensive was what Nikki Haley tweeted: "Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test. That’s what I did when I picked Tim Scott as Senator of South Carolina."

And who could forget Tucker Carlson's tirade in which he proposed nominating George Floyd's sister, a grieving family member who is also not an attorney?

Part of the objection here is to race-conscious hiring. While I support race-conscious hiring, I understand that people of good faith can differ on the practice. What I find most annoying about the right-wing conversation regarding Biden's pick is the unstated premise that the white, Christian, mostly male group that Republicans have nominated to the High Court made it there through talent, skill, and judicial aptitude. I won't say that nothing could be further from the truth, but one would have to search a bit to find something more preposterous to presume.

I cannot resist beginning my little refutation of this ridiculous premise by reminding everyone that Brett Kavanaugh currently sits on our High Court. Though according to him, he "busted his butt" to get into Yale, where he had "no connections," he was in fact a legacy, as his grandfather went there. Having served on the admissions committee at Cornell, I can attest to the heavy thumb on the scale that legacies enjoy. Claiming otherwise during his testimony was perjury.

In her excellent book, Supreme Ambition, Ruth Marcus said the following about Kavanaugh's towering intellect:

[A]s graduation approached, classmates were surprised to discover that Kavanaugh had managed to win admission to Yale Law School. The common refrain was "Brett Kavanaugh got into Yale Law School?"  one friend recalled. Given Kavanaugh’s academic record, his admission to Yale Law School was somewhat of a surprise. Notwithstanding President Trump’s claim that Kavanaugh was “number one in his class at Yale,” he graduated only cum laude, a distinction shared by nearly half the class. “If you had asked anybody in our Yale class who was going to be the most famous person in the class of ’87, nobody would have said Brett Kavanaugh,” said Dan Levy, sports editor of the Yale Daily News.

Kavanaugh does seem to be an expert at networking, though. When Alex Azar left the employ of Judge Alex Kozinski (perhaps because the latter's abusiveness was too much for Azar), Brett Kavanaugh was more than happy to take a position that he was insufficiently credentialed to have earned in the first go-round and for which “[t]here weren’t a lot of candidates" competing midstream (according to the person who recommended Kavanaugh, quoted in Supreme Ambition). Kozinski was a feeder judge to Justice Kennedy, so Kavanaugh made his way into an even more coveted position as Justice Kennedy's law clerk.

How did Kavanaugh come to sit on the Supreme Court? Well, Leonard Leo, co-chairman and former Executive Vice President of the Federalist Society, chose the list of people from which Trump selected for nomination to the High Court. And what were Leonard Leo's favored criteria? He wanted judges with a proven record of being prepared to overrule Roe v. Wade, in keeping with Leo's commitment to imposing his particular brand of Catholicism on the country. And guess what? The best and the brightest legal minds in the country mostly oppose a governmental prerogative to force women to carry pregnancies to term. His first criterion therefore severely limited the talent pool. Another criterion was that the judge had to be willing to lie or mislead under oath during his confirmation hearings, claiming to respect Roe's standing as a precedent (or a precedent on precedent). In addition to lying about his getting to Yale with "no connections," his drinking habits, his yearbook, and his history of sexual assault, Kavanaugh plainly felt no compunctions about falsely claiming to respect the precedent of Roe, given his disgusting comparison at the oral argument in Dobbs v. Jackson Women's Health Organization between Roe and Plessy v. Ferguson.

Leonard Leo also selected Amy Coney Barrett out of the miniscule pool of federal judges who were young, female, and happy to inflict compulsory pregnancy on women throughout the land (so long as they can leave their forcibly birthed children at the police or fire station). One could probably count on one hand the number of female judges in their 40's with the right (pun intended) viewpoints. Barrett has said a number of astonishing things in her brief tenure, but here is my favorite line, from oral argument in Carson v. Makin (the case in which the five reactionaries on the Court will likely find that Maine must allow parents to use school vouchers for tuition at religious schools). The context was the lawyer saying that Maine's program would give no vouchers either to religious schools or to anti-religious schools. Here's the quote:

"Is there any kind -- I mean, how would you even know if a -- if a school taught all religions are bigoted and biased or, you know, Catholics are bigoted or, you know -- or we take a position on the Jewish-Palestinian conflict because of our position on, you know, Jews, right?"

It is useful to know that one of the Justices on the Supreme Court believes that the conflict in the middle east is between Palestinians and Jews (rather than, say, between Palestinians and Israelis). There are people who believe that Jews' first loyalty is to Israel no matter where they "technically" live and that therefore, "Israelis" and "Jews" are interchangeable. Such people are generally called anti-semites. But to be generous to Barrett, I suspect that she is not anti-semitic at all. She is just utterly ignorant about how people beyond her tiny circle from which Leo drew her name identify themselves as Jews. Such is the downside of selecting from such a shallow pool.

Then there is Neil Gorsuch. Leo picked him too and for the same reasons he picked the other reactionary people to fill the Leo Court. Ruth Marcus says that Donald Trump liked Gorsuch very much because he looked like a judge. He certainly does not act like a judge, refusing to wear a mask when one of his collleagues is especially vulnerable to COVID. I did enjoy the press conference, however, where he and Justice Sotomayor denied that she had asked him to wear a mask. Of course, the original story never said that she had asked him to wear a mask but only that the Chief Justice had. In any event, though, it should not be necessary to tell a person that he should wear a mask out of basic decency to his colleague, let alone to indicate openness to oral arguments on masking mandates. It seems that an activist judge is not necessarily an activist mensch (for Justice Barrett, that's a Jew word).

I do have to give credit where credit is due. Chief Justice Roberts is an extremely intelligent and capable attorney, notwithstanding Leonard Leo's having selected him. I have watched Roberts in oral argument as a lawyer, and he was truly outstanding. He also is trying to keep the zeal of the reactionaries in check, despite his probably sharing many of their views.

I'll stop here, although it is obvious that George H.W. Bush selected Clarence Thomas because the latter is Black, notwithstanding Thomas's lack of much experience on the bench. What he lacked in experience, however, he made up for in sexual harassment. For more on how Kavanaugh outperformed Thomas along the sexual misconduct dimension, see my column, Remembering Brett Kavanaugh.

I have said nothing so far about Justice Alito. He is a very bright man, and he used to show signs of empathy and decency here and here. He also showed a wicked sense of humor in United States v. Jones, mocking Justice Scalia's efforts to figure out what the framers would have thought about GPS monitoring of vehicles' movements.  But Justice Alito has become very bitter of late. Maybe he is once again angry that he is not the Chief Justice. In any event, I am not sure Samuel Alito would rise to the top in a head-to-head "merit" contest, but he is not an embarrassment.

The reason for this close look at the Republican picks on the Supreme Court is to make it clear that it is actually the right wing that most constricts the pool of potential candidates for spots on the Supreme Court. Most of the country, including the people who go to law school and find their way into judgeships, share the moderate and mainstream views of Justices Kagan and Sotomayor. So when the democratic process fails to place representative individuals in the White House, the President must face slim pickin's. Most people who find the reactionary, theologically oriented majority of the Supreme Court nauseating to contemplate have held our tongues regarding their qualifications and credentials. But I think it is time that we spoke out, now that the right has exposed its confused belief that President Biden is the first President to narrow the field of potential judicial appointees. The Black women that President Biden is currently considering are impressive, talented people who have succeeded despite the obstacles that racism has placed in their path. Their achievements are therefore inspiring, a word that would not cross my mind in characterizing Trump's appointees to the Supreme Court.

The moral lesson is an oldie but a goody: People exercising outsize power from a Glass House should avoid throwing stones. Enjoy your ill-gotten majority of the Supreme Court and leave Justice Breyer's replacement alone. That is one way you can avoid being called out as a racist.