Category Archives: Courts

Lindsey Graham is Mistaken

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Senator Lindsey Graham (R, SC) is a supporter of President Joe Biden’s (D) Supreme Court nominee—so long as the selection is South Carolina US District Judge Michelle Childs. It’s typical for a Senator to support nominations for high office when those nominations come from the Senator’s State.

It’s also useful, all other things being equal, for Senators of either Party to support the nominations of a President of either party on the theory that a President should be able to have his own team in place (my argument here, not Graham’s).

Graham’s rationale, though, is badly mistaken, and the mistake of his rationale impacts that “team” concept, as well.

Graham supports Biden’s impending nomination of a black woman for Supreme Court Justice (which, in Biden’s own and often repeated terms, puts actual qualification for the Court deeply secondary, if that’s a consideration at all) centers on this:

Put me in the camp of making sure the court and other institutions look like America.

And, as paraphrased by Just the News:

Graham added that Republicans have made a “real effort” to “recruit women and people of color to make the party look more like America.”

Looking like America, though, is a political matter. Political questions are entirely appropriate for political parties, political questions are entirely appropriate to the political branches of our government, where we American citizens can, and do, choose who will represent us—achieving tautologically a representation reflective of America.

However, it is not the role or purpose of our courts, epitomized by our Supreme Court, to “look like America.” Our courts—most especially our Supreme Court, which is the court of last resort for most cases—must reflect, must act within, must apply as they are written, the clauses of our Constitution, our Constitution as a whole, and the statutes before them in specific cases. Looking like America is irrelevant to that duty.

Nor are our courts—most especially the Supreme Court—part of the President’s team. Our courts consist of judges and Justices possessed of lifetime appointments. That’s by design, explicitly to inure those folks from politics, per se, to separate them from, among other things, this or that political team.

What looks like America, from the independent courts’ perspective, already is embodied in our Constitution and its clauses and in those statutes. It would be wrong for our courts to attempt to adjust that perspective, and it would be wrong for politicians to attempt to alter the courts so as to adjust that perspective.

The Supreme Court and Diversity

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Law Professor (University of Tennessee) Benjamin Barton thinks the Supreme Court needs diversity along many more dimensions than just race and sex, ostensibly to avoid groupthink.

Given that every justice is already a lawyer, it makes sense to try to diversify across other educational, geographic, and experiential axes.

Barton’s entire argument is a non sequitur.

The Supreme Court needs “diversity” far less than it needs Justices who will adhere to their oaths of office to defend and uphold our Constitution and to apply the laws equally to all Americans, without regard to any elements of “diversity.”

The Supreme Court needs Justices, in particular, who will accept the requirement of our Constitution’s Article I, Section 1, and who will rule based on what the Constitution and the statute before them in a particular case actually say, and not based on a Justice’s personal views of society’s needs.

Society’s needs are political matters that are solely within the provinces of the political branches of government and of We the People who elect the members of those branches. It is, after all, We the People who are society and so are the arbiters of our needs, and it is We the People who implement satisfaction of our needs through our individual actions and with the votes we cast to elect our representatives.

It’s Appropriate

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Senate Majority Whip and Senate Judiciary Committee Chairman Dick Durbin (D, IL) says it’s entirely appropriate to select a Supreme Court Justice first on the basis of her race and gender. He then says,

If they have achieved the level of success in the practice of law and jurisprudence, they’ve done it against great odds.

We’ll never know whether that’s true of President Joe Biden’s (D) nominee, though, since he’s made plain he’ll nominate on the basis of race and sex, and not on the basis of any level of success in the practice of law and jurisprudence.

But this degree of racism, much less of sexism, shouldn’t be a surprise from a party with a history of racist bigotry stretching back into the pre-Civil War years and today whose racist and sexist bigotry is demonstrated through Party’s insistence on proselytizing its identity politics.

As a side note, Durbin also justifies his President’s racist and sexist choice criteria on the claim that other Presidents did it, too. There’s the concept of morality with which we’re so familiar in the Progressive-Democratic Party and its predecessor, the Democratic Party: the morality of a behavior isn’t at all intrinsic in the behavior; on the contrary, morality is rooted in whether somebody else behaved that way, too; morality is a matter of situation, of what’s personally convenient to the behaver.

A Misunderstanding

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The Wall Street Journal‘s Editorial Board had a piece about Justice Stephen Breyer’s impending retirement last Wednesday. One bit in it caught my eye.

Like many liberals of his generation, he [Supreme Court Justice Stephen Breyer] is an institutionalist who believes in the promise of the Constitution and incremental social improvement.

And herein lies the fundamental misunderstanding of liberal judges regarding their role as judges. A judge cannot both believe in the promise of the Constitution and act on the premise of incremental social improvement.

Acting on social improvement, incremental or otherwise, is a strictly political matter and is solely the province of the political actors—Congress and We the People who hire those actors.

If a judge believes in the promise, he must adhere solely to his duty to apply the statute(s) and Constitution that are before him in any case. If he acts on those views of social improvement—which views are inherently his personal views—he is violating both Article I, Section 1, of our Constitution and his oath as a judge to support and defend the Constitution of the United States.

“Coy,” Is It?

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The Biden-Harris administration, in its argument for the government’s appeal in the 8th Circuit of a trial court’s rulings in Religious Sisters of Mercy v Azar and Catholic Benefits Association v Azar, steadfastly refused to say whether, in fact, these entities would be subject to government suit were those entities, in fact, to refuse to provide and cover so-called “gender transition” procedures. The case and the government’s “enforcement” vagaries center on

how the Department of Health and Human Services (HHS) and US Equal Employment Opportunity Commission (EEOC) interpret Section 1557 of the Affordable Care Act, which prohibits discrimination by gender identity, and Title VII of the Civil Rights Act in relation to RFRA [Religious Freedom Restoration Act].

Just the News mildly referred to that as the government being coy.

The government’s attorney, Assistant US Attorney Ashley Chung, then went so far as to tacitly threaten the judges:

She warned the judges not to “open the floodgates to premature litigation” based on “uncertainty” over how agencies might respond to new legal interpretations or court rulings.

This is a cynical argument by Chung. The judges won’t be opening floodgates for “premature” litigation. HHS and EEOC already have opened those floodgates with their carefully thought out decision to be “uncertain” in their “interpretation” of Obamacare, Title VII, and associated regulations and to be vague on their enforcement procedures for those.