We must bring the Supreme Court into alignment with the rest of the federal courts. The highest court should not have the lowest standards. https://t.co/RZ2wc0Vo7g
— Sheldon Whitehouse (@SenWhitehouse) April 18, 2023
In case you didn’t notice, that was part #21 from Sheldon Whitehouse, as part of his tireless efforts to call attention to the travesty that is the court system in general and the Supreme Court in particular.
“You’re not a court just because you wear black robes. You’re a court because you behave like a court.”https://t.co/pX8KMpmo6M
— Sheldon Whitehouse (@SenWhitehouse) April 22, 2023
🧚♀️
“We Can’t Lower the Bar So Low”: Can the Senate Rein in a Scandal-Plagued Supreme Court? (Vanity Fair)
“There is absolutely nothing that is difficult or complicated about this,” Senator Sheldon Whitehouse tells me. Supreme Court justices should be held to the same ethical standard as any other judge—and if they violate it, as Clarence Thomas seems to have done, there should be a way to hold them to account. It’s common sense stuff. And yet, in the immediate aftermath of new revelations about Thomas’s lucrative friendship with conservative billionaire Harlan Crow, there seems to be little hope that the far-right justice will be held to any ethical standard at all.
Neither a divided Congress nor Chief Justice John Roberts—who has willingly refused to enact ethical rules—are likely to be of any aid. Which leaves us with “the attorney general investigation that we asked the judicial conference to request,” Whitehouse tells me, and the “continued pressure on Roberts to set up a mechanism for the investigation and determination of ethics complaints within the Supreme Court. That’s pretty much the suite of options we’ve got.”
Still, a tireless champion of judicial reform, the Rhode Island senator is holding onto hope that Thomas’s latest scandal could be the tipping point for reform—even if Democrats have no clear recourse right now to hand down concrete consequences for Thomas’s conduct. “This attention, and this pressure on the court, and the outrage that many federal judges feel, and the prospect of hearings and legislation being debated—that to me is all a big step forward,” Whitehouse says. “I’m very much glass half full about the progress that’s been made in the last weeks, though I am glass half empty about where this ends. We don’t know where this ends.”
His doubt is well-founded; despite years of facing calls for more accountability, the court has declined to establish formal ethics requirements. In 2011—amid concerns about how Thomas’s friendship with Crow and Ginni Thomas’s activism, as well as liberal Elena Kagan’s previous work for the Obama administration, might influence the justices’ approach to cases involving the Affordable Care Act—there was enough bipartisan interest for reform that the Senate Judiciary Committee brought then justices Antonin Scalia and Stephen Breyer to Capitol Hill to testify. But Roberts refused to adopt the Judicial Conference of the US Codes of Conduct, writing in his annual report that year that the court had “no reason to adopt the Code of Conduct as its definitive source of ethical guidance,” and suggested that the “rigorous appointment and confirmation process” justices are subjected to is a sufficient guard against misconduct.
🧚♂️
Lacking sharp legislative teeth, Democrats are essentially hoping to outsource immediate oversight to the executive and judicial branches—calling for a Justice Department investigation, which it has yet to open. They’ve also demanded that Roberts conduct his own probe, which he has not indicated to Whitehouse he would do. (The Supreme Court did not respond to Vanity Fair’s request for comment.) “The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards,” Senate Judiciary Committee Chair Dick Durbin said in a Thursday letter, inviting Roberts to answer questions before the committee early next month.
Those hearings could make waves, and pressure from the public could build a groundswell in favor of reform. “That’s not dead in the water,” Jeremy R. Paul, a professor at the Northeastern University School of Law, told me. “I think the possibility of reform is real. [But] I also think the question of what that reform would take is hard to say.”
Whitehouse and his fellow Democrats have already put pen to paper. Back in February, they introduced the Supreme Court Ethics, Recusal, and Transparency Act (SCERT), which would do exactly what the justices themselves have refused to do: establish a process for investigating misconduct and create stronger recusal standards, disclosure rules, and a code of ethics for justices. It’s far from a sure thing, of course, that the measure would garner enough GOP support, given the collective shrug the party has issued in response to the Thomas revelations. Then again, Republican senator Lindsey Graham, the ranking member of the Judiciary Committee, has promoted similar legislation in the past, and his party could be compelled to act as questions about the court’s legitimacy grow louder. “The behavior of these justices is inexcusable…and at some point, they’re gonna have to reconcile themselves with that,” Whitehouse tells me. “You’re not a court just because you wear black robes,” he added. “You’re a court because you behave like a court.”
Passing SCERT would help immediately safeguard against the kind of egregious impropriety Thomas seems to have engaged in, unchecked, for decades. But in the long term, Lipton-Lubet said it will take more than one bill to restore public trust in the integrity and independence of the court. “We can’t lower the bar so low just because the Republican Party has decided that they don’t care about ethics or the rule of law or common decency,” she told me, so “what are the structural reforms that we’re gonna put in place to salvage the court and really save it from itself?”
Here’s a gift article to the Jennifer Rubin at the Washington Post, where she talks about the ridiculous and outrageous dissent from Justic Alito.
Some highlights (but please read the whole thing at the gift link above if you are interested).
Justice Clarence Thomas has gotten the attention of late due to questionable ethics. But it’s high time Justice Samuel A. Alito Jr. received the scrutiny he deserves. Alito’s dissent in the mifepristone case has served up yet another example of his intemperate, partisan rhetoric.
In the rush to celebrate the failure of medical zealots (this time) to dredge up an antiabortion activist in robes to countermand the FDA, Alito’s dissent shouldn’t be ignored, for it perfectly encapsulates the degree to which he’s become “unmoored from reason,” as legal scholar Norman Eisen tells me.
The opinion is so lacking in judicial reason and tone that Supreme Court advocates and constitutional experts with whom I spoke were practically slack-jawed. They cite a batch of objectionable arguments and remarks in his dissent.
It’s entirely irrelevant to the matter at hand and, as with so much of Alito’s writing, utterly intemperate.
But it gets much worse. Alito has the temerity to assert that there would be no irreparable injury in denying the stay because “the Government has not dispelled legitimate doubts” — by whom? where does this standard come from? — “that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.” This unprecedented attack on the government’s obedience to court rulings — based on nothing — is out of order. There is zero evidence — stray pundits and legislative backbenchers don’t count — that the Biden administration would essentially put itself in contempt of court.
Moreover, Alito’s dissent demonstrates that he does not care one whit about the women affected if the drug were suddenly made unavailable. (At least he’s consistent; he also utterly ignored the interests of women in Dobbs v. Jackson Women’s Health Organization, giving them no weight in contrast to the seemingly inviolate interest of states in commandeering women’s reproductive choices.) Their irreparable harm doesn’t register.
Next, consider Alito’s hypocrisy in accusing the government of “leveraging” (i.e., judge shopping) by going to a court in the 9th Circuit to obtain a contrary opinion, thereby setting up a conflict between circuits. It takes some nerve to make that accusation, given how the case began when antiabortion activists searched out a single-district division in Amarillo, Tex., where they were certain to draw a judge who embraces their cause.
Finally, Alito dishonestly asserts that a stay isn’t needed because this will all get decided quickly at the 5th Circuit or at the Supreme Court — probably in the government’s favor. (“Because the applicants’ Fifth Circuit appeal has been put on a fast track, with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek — from either the Court of Appeals or this Court — in the near future if their arguments on the merits are persuasive.”)
Open thread.
Kay
It’s just bizzare that they seem to believe the various ethics and reporting rules that tens of milions of people in all kinds of professions are subject to just don’t apply to them. I can’t imagine that kind of arrogance. Who the fuck raises these people? Are they told they’re ultra special snowflakes beginning at birth?
Rein. Them. In. This hubris shouldn’t go unanswered.
sdhays
To be fair, we’re finding that ethics aren’t very strong in the lower courts too.
Antonius
It’s not enough to enact a theocratic fascist government, it has to be a corrupt theocratic fascist government.
Eunicecycle
And of course when judges and justices can lie in their confirmation process with no consequences, it’s not that rigorous.
p.a.
The whole bunch, but especially “Scalito” and CampgroundClarence should be subject to public mockery in every media stream available, as well as whenever they stick their noses out in public outside their reich-wing cubbyholes. There may be no system in place to hold them to ethical standards (or any standards really), but that doesn’t mean we can’t call a turd a turd.
Kay
@Antonius:
They’re always corrupt. The corruption is inevitable with “theocratic fascist”.
I wish Americans would start caring about corruption. We’re not that extra special. If the highest court in the country refuses rules and some of them don’t even follow the weak existing rules we’re pretty far along towards systemic. It’s like an infection. You can’t just let it run unchecked.
Cameron
Fucking ethics, how do they work?
lowtechcyclist
@Eunicecycle:
At least, Congress could have all their testimony be under oath, so that they could later be charged with perjury.
But another flaw is that the process can be brought to a premature resolution while whole areas of inquiry go unexamined. I don’t recall any real inquiry into the sudden disappearance of Kavanaugh’s large debts. (We still deserve answers about that.)
Josie
@lowtechcyclist:
Yes, this is something congress should demand, going forward. All judges up for confirmation should be required to testify under oath.
Kay
My (late) friend Barb who was a great lawyer and a kind of mentor to me told me once “lawyers are rule people, and I’m a rule person so I belong”. To her, “rules” meant fairness and due process and transparency and they were not just for the little people.
Maybe not, huh? Not these prestigious and untouchable lawyers, anyway. They’re not rule people.
hells littlest angel
They think they are philosopher kings. And they are. They are Dollar Store philosopher kings.
RaflW
Neither a divided Congress nor Chief Justice John Roberts—who has willingly refused to enact ethical rules—are likely to be of any aid. Which leaves us with … a populace that has to be relentlessly, expressively angry so that elected officials begin to worry for their jobs if they don’t act on our corrupt and illegitimate Scotus.
I know there’s a lot of other issues afoot. That’s part of the point of the multi-front gallop by conservatives in this country right now. But we can use some of the same sorts of tools that they have been to amplify our issues.
We – progressives, the left, the Dems – have to fund youth & young adult movements well. The generation of voters 18-40 (and just about to come of voting age, too) are significantly more liberal than older generations. We have to help them mobilize themselves!
Fund the work they want to be doing (not the top-down BS that I think was a front page topic here the other day). Give Run for Something a budget that is unstoppable. Or whatever civic/campaign org you like that recruits and trains young, diverse candidates.
Yeah it’s a long game. It’s the only game that’s going to work. The critique of Dems and liberals that I most resonate with is the one that picks at our tendency to seek singular actors (a president, a court, an A.G., a libel lawsuit) that will swing the tide. Those things are but elements in a far, far wider and deeper and funded set of movement effects needed.
El-Man
And Roberts wondering WHY the Supreme Court is no longer respected?
“Rules for thee, but not for me.”
RaflW
@Kay: The radical Scotus Six are followers of Frank Wilhoit’s rule: “Conservatism consists of exactly one proposition …There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”
They’re playing legal Calvinball, but underneath it all is a rule: The rule of absolute power to make decisions benefitting the in-group.
delphinium
Was Roberts sentient during the “I like Beer” Kavanaugh and ‘Empty slate’ Coney Barrett hearings? Not to mention that the confirmation process depends on 1 party not being lying, grifting, corrupt assholes themselves.
Cameron
@RaflW: Most definitely make a strong pitch to the Youngs. Maybe give it a snazzy title, say, “Tomorrow Belongs To Me?”
delphinium
@p.a.:
‘CampgroundClarence’ made me laugh.
TheOtherHank
So what would a supreme have to do to get arrested? All the discourse I’ve seen comes down to “they’re untouchable.” Let’s say Gorsuch was drunk driving and ran down a pedestrian and then fled the scene. Surely he’d be arrested and charged. As we work our way through the various crimes when do we get to the “we can’t charge a supreme court judge” line? Thomas seems like a pretty unambiguous case of public corruption to me: taking bribes. But that seems like it’s on the far side of the untouchable line.
Kay
@RaflW:
There are lawyers who genuinely believe in the the whole aspirational project – so not just careerists or ass kissers or transactional “get the problem solved” lawyers (like me) but sincere and earnest “good faith” law-lovers. Intellectuals. Barb was one of them. She’d be horrified by this court. She died too young but I’m glad she isn’t witnessing this ethical collapse.
different-church-lady
Thomas should be impeached now, but with Alito we can just wait until he bites the head off a chicken.
sdhays
Isn’t the Chief Justice’s “power” pretty limited? Could he impose ethical standards on anyone if there isn’t a majority of the Court backing him (if he wanted to)?
kindness
Once again we are stuck waiting for a ‘better’ Senate to work for us. And honestly I don’t know when that will happen. The ’24 elections will be a guide. Durbin hasn’t helped us. He should have let Whitehouse lead the committee instead of swooping in and claiming the chair because of his seniority. We won’t ever get 60 Democrats in the Senate again. We’ll have to do it with less & better ones. We’ll see I guess.
Lapassionara
@delphinium: Me too. I also like “Walmart parking lot Clarence.”
sdhays
@kindness: Would Whitehouse have been able to prevent Feinstein from contracting shingles?
HumboldtBlue
I was listening to one of the learned ladies on Nicolle Wallace’s show (I believe it was that brilliant Michigan law professor) about how the Supremes see themselves as above any rules or ethics because their specific roles are spelled out in the Constitution, therefore we have no business imposing any of our silly lay person less than fully citizen type shit on them.
oldgold
Of course, I support the Supreme Court having a Code of Ethics.
That expressed, a Code of Ethics will do nothing to prevent Alito, an untethered, reckless zealot or Thomas, an incompetent, self-righteous crook, from their perfidious mauling of the rule of law. This is particularly so, given the craven leadership exhibited from day one to the present by Roberts.
Jinchi
@TheOtherHank: The Supreme Court has been of the opinion that lavish gifts are not bribery for a while now:
Sure Lurkalot
When I look back to consider points of inflection that contributed to this sad state of affairs, I believe that the Citizen’s United case is key. Not saying there wasn’t a shit ton of corruption prior, but that decision does little else than green lights political bribery.
That the conservative membership of our courts is fueled and vetted by the (tax-exempt!!) Federalist Society should be unacceptable in a modern democracy.
Omnes Omnibus
@oldgold: You know that the Chief Justice isn’t actually the boss at the Supreme Court, right?
Kay
@oldgold:
That’s what a code is for though. It isn’t for honest people- they don’t need it. The code is there to be used when someone violates the code. We won’t have to discuss whether Clarence Thomas is a “good man” or not, as we’re told by his friends in media and the ass kissing lawyers who work in his court. No one will have to measure Harlan Crow’s “goodness” or lack thereof. We won’t have to rely on any of that bullshit. Instead we’ll point to the code and the section he violated. Clean. Fair. Transparent. Objective not subjective. Can apply it to anyone. We could have a “bad person” who complies with ethics rules!
It also deters, but I agree with you there. That won’t work on the worst offenders.
It’s funny to listen to Clarence Thomas’ defenders because in the real legal system- the one the peons shuffle thru in their plastic flip flops and belly chains- all of these attestations to what a “good person” he is would only matter for sentencing. It doesn’t make a bit of difference on the question of whether he committed the offense or not. One would think godammned lawyers would know that.
apocalipstick
@RaflW: Roberts has zero authority. Chief Justice is a title, nothing more. No justice is ‘in charge’.
oldgold
@Omnes Omnibus:
Tell that to Earl Warren’s ghost.
different-church-lady
I think the solution is to require 2/3rds for confirmation.
Yes, I understand that would mean nobody would ever be confirmed. And I still think that’s the solution.
WaterGirl
@Josie: YES! In all caps, RED, and flashing!
Betty Cracker
Good to see Rubin’s WaPo column on Alito’s whiny-ass dissent showcased here — it was outstanding. This part bears repeating:
Every member of the FedSoc Six is awful in some disqualifying way, but Alito might be the most arrogant of the excruciatingly self-regarding bunch. Not only is he intent on stripping away half the population’s personal agency, he demands deference while he does so.
Omnes Omnibus
@oldgold: To the extent that Warren had power over the other justices it was due to his personal attributes and not the nature of the position. Possibly due to his side hustle as a sleazy male stripper.
Kay
@Betty Cracker:
More than deference. Admiration. How he got to be as old as he is without finding out that he can’t petulantly demand that people admire him is a real testament to how coddled these people are.
That isn’t how it works. Sam.
Omnes Omnibus
@Betty Cracker:
Alito is and always has been an asshole. It is his defining characteristic.
oldgold
@Omnes Omnibus: On this we can agree.
apocalipstick
@TheOtherHank: Except SCOTUS has defined bribes as bags of cash, and only bags of cash, with ‘BRIBE’ stenciled on the side.
I wonder if they knew something when they did that.
apocalipstick
@oldgold: Appealing to Earl Warren’s ghost is the same as pining for the ghost of LBJ. Times, they be changed.
And Warren scheduled a six-month debate on Brown v. Board to make sure he could get a unanimous opinion.
apocalipstick
@Omnes Omnibus: Yeah, Alito is still mad about women being admitted to Princeton.
Suzanne
@Omnes Omnibus:
Yes, agreed.
His specific flavor note of asshole is fairly common in patriarchy: this idea that he is owed “respect”, by which is really meant “esteem”. Fuck that schmuck; that’s not how it works.
Glidwrith
@Antonius: By definition, can any fascist and/or theocratic government not be corrupt?
Ethics don’t matter. One must toady to the top toad.
Truth doesn’t matter, eaten by dogma or carrying the lies of Dear Leader.
oldgold
@apocalipstick:
I think your argument concerning Brown defeats your premise.
Chief Justices have power, but they have to seize it. It is This is precisely what Warren did and Roberts will not.
WaterGirl
@Kay: “Please clap.”
Kay
@WaterGirl:
He’s a liar too. Remember how he forgot he was in a group that wanted to ban women from attending Princeton?
He forgot. Its just shameless lying.
WaterGirl
@Omnes Omnibus: It seems like being made chief justice gives a justice an outsized opportunity for influence and leadership, if you are actually a leader.
But “balls and strikes” guys is a total weakling, so he seems to be doing none of that.
Would you agree?
trollhattan
@sdhays: Believe his sole super power is assigning parking spaces to the justices.
Omnes Omnibus
@WaterGirl:
I can agree with that. The chief justice can affect the scheduling of cases and assigns the writing of the opinion on cases in which he (and it’s always be a he) is in the majority. That’s about it.
One of the most influential justices of all time was Brennan, He crafted many of the majority votes of the Warren Court. He did so because he was a good deal maker.
Gvg
You know, I don’t think an ethics code will do it because politics will always be involved in whether Congress wants to enforce a real penalty on them. There is no actual authority over them except impeachment and removal which takes the will of both houses of Congress. The “chief” justice is a ceremonial title. Roberts has no authority to impose any rules on them. I suspect he is corrupt because of the way he has reacted. He ought to explain to Congress and the public how the court works but he probabaly likes being perceived as having more power.
What we need to do is make ethics LAWS with legal penalties that get charged by AG’s. Taking bribes, indirectly or directly, the appearance of taking bribes, taking gifts beyond a specified value from non related people, not declaring every little thing every single year, should have specified penalties including removal from office and jail and fines. Spouse and parents and offspring should also have to declare everything and the judges would be recused by a board not by their choice for anything related or the appearance of being related. There would have to be a whole bunch of things worked out about families who don’t get along and reporting but the point is it would need to be pre approved Even the Supreme Court.
So then, Thomas would be arrested not just talked about in the papers. Probably some of the others too.
Alito seems to be going off his rocker.
apocalipstick
@oldgold: No. Warren did not have official authority. He did not ‘seize power’; he spent six months persuading. Again, the office of Chief Justice has no authority other than assigning the responsibility of writing the opinion, and that’s a tradition as well.
Omnes Omnibus
@apocalipstick: Warren had soft power. Roberts does not. Their reputations in the history book will reflect that. Also, the fact the Warren used his power to do good things, and Roberts would not if he had any.
cmorenc
@lowtechcyclist:
Problem with this approach is that it would effctively lock a Justice into any comments about substantive law they made at confirmation, because any evolution or change in outlook could be charged as perjury by a potentially partisan Attorney General. Nominees will unsurprisingly refuse to answer any questions whatever at confirmation hearings that could have any potential to reflect on how they might decide issues.
This principle of prosecuting conformation “perjury” equally could be used as a weapon by a hyper-partisan GOP Attorney General (e.g. the likes of Bill Bart) against moderate or liberal Justices for comments made during their respective confirmations. And if used against RW liars like Kavenaugh etc., even if you obtained a conviction for perjury, what are the chances you could get enough GOP Senators on-board with voting for impeachment to get 2/3, when you couldn’t get but a couple to vote to remove Trump after even more blatant misconduct?
smith
The weird thing to me is that I’ve heard a number of times over the years how much Roberts cares about how his court will be regarded by future historians. Guess he assumes the history will be written by the winners, and the winners will be fascists.
oldgold
@apocalipstick:
First you tell me : “Roberts has zero authority. Chief Justice is a title, nothing more.”
Now you say, “The office of Chief Justice has no authority other than assigning the responsibility of writing the opinion….”
That is a contradiction.
Then you say, “No. Warren did not have official authority. He did not ‘seize power’; he spent six months persuading.”
Sounds like Warren seized the power to give him time to get a unanimous opinion.
chrome agnomen
IANAL. boy o boy, IANAL! but I wonder. can a suit for violation of ethics be brought at a lower court, and somehow forced through the system until it reaches SCOTUS? and fucking force Roberts to a position on the subject?
Omnes Omnibus
@chrome agnomen:
No.
Kay
@smith:
I just think he’s weak and got rolled. It’s Alito and Thomas’ court now. One would have to stand up to them – they would seek and exploit weakness- and I don’t think John Roberts has it in him.
Shalimar
@oldgold: Warren used his influence and limited powers well. Roberts did the same thing with a handful of close opinions when the conservative majority was only 5-4 and he could use his vote to control opinions. He lost almost all of that ability when it changed to 6-3.
narya
In re: Roberts caring about the Court’s reputation. Basically, he lost whatever control he had when TFG installed the terrible three. At this point, it’s basically Scalia’s and Thomas’s YOLO court–their grievances rule everything, and they are determined to dismantle as much of the government as they possibly can.
Josie
@cmorenc:
I disagree. They already don’t make substantive statements on points of law. Being under oath would at least keep them from lying about events in their previous lives and/or writings.
trollhattan
@narya: A fair point. As the theoretical swing vote Roberts must have had an elevated role in opinions, but now he’s irrelevant to the conservatives. Peak Roberts was his preserving that chunk of ACA which still exists.
Steeplejack
About those high ethical standards for federal judges . . .
“Judge stays on Catholic bankruptcy despite church donations.”
(Emphasis mine.) My spidey sense had been tingling about the ethics panels backstopping the integrity of the federal judges. I didn’t want to think the worst, but do we have to start worrying about them, too? The opinion in favor of this judge seems farcical.
Kay
@Steeplejack:
Those poor victims. They must be so angry. It’s just insult to injury.
Warblewarble
Roberts is nothing other than a rethuglican operative and enabler, and is undeserving of credit as anything else. That should be glaringly obvious.
Steeplejack
@Kay:
There’s more! From that same article:
My rage gland was pretty much exhausted by the time I got to the point of being reminded that campaign contributions basically can be used for any goddamn thing. Makes me grit my teeth and think about the money I gave to Amy McGrath and that nonentity who ran against Susan Collins in Maine. I think she ended up funding an art gallery in her hometown.
J R in WV
@Kay:
Apparently so, in all contrast to their actual skill and talents. Not to mention their near total lack of ethics n public. . . . well, the 6 RWNJs anyway. The 3 liberal justices appear to be quite ethical by contrast.
Kay
@Steeplejack:
They’re really brave, those lawyers. The church just goes after them ferociously.
My one run in with a diocese was contacting the diocese lawyer to demand a Catholic school release student records- the family was behind in tuition and needed the records to enroll in public school which is Ohio law- the records have to be released regardless of ability to pay past due tuition bills for K-12. Just super nasty and way too aggressive for the situation where he was, you know, wrong and should have just apologized and had his client comply. I was “woah there buddy. Hold your fire! This is a records demand, not a declaration of war”.
cmorenc
@Josie: willful misrepresentation of facts might be sufficient in Kacsmyriks (sp?) case regarding his concealed publication and possibly nondisclosure of multi-million $ stockholdings, but apart. from regarding Anita Hill, which of the current SCOTUS RW six would misrepresentations of fact apart from those reflecting on legal issues likely to come before the court would you be able to nail them on (for purposes of pursuing perjury)?
And I specifically recall Kavenaugh having bald-face lied to Susan Collins about Roe being “settled law”. True, most SCOTUS nominees attempt to minimize comments that might reflect substantively on issues, but IIRC all 3 of Trump’s nominees at least mumbled about respect for settled law, which implicitly includes Roe, except for the nominees’ secret determination to regard Roe as unsettled law once they donned SCOTUS robes.
Baud
@Kay:
Yeah, right. Lucifer asked to see records too. It escalated from there. You ain’t fooling anybody.
Another Scott
@Gvg:
A Code is only as good as the people willing to follow it, and you’re right that enforcement is a problem. There can be issues when one branch of government is perceived as “going to war” against another one. And we know that perceptions can be amped up by bad actors.
I just looked – there are 16 judges on the DC Circuit Court of Appeals. People don’t think it is corrupt, because a panel of 3 judges can be over-ruled by an en-banc hearing if they get out of their lane, among other things. Mostly people don’t think about it at all, except when there’s some big case decided, and then the court just fades into the background again.
The SCOTUS is too small. It’s too easy to wildly swing in its evaluation of the law and precedent if only one or two seats change, so it takes outsized attention when an opening exists (and there are too many incentives to convince people to leave under a particular party to sway the outcome).
The SCOTUS needs to be expanded (Fight for 15!!) so that a single seat changing hands doesn’t cause wild swings in outcomes, and going to a panel / en-banc system should be carefully looked at. Similarly, saying (as some have proposed) that each president gets one nominee their first term and one their second (or whatever) would bring regularity to the process and make it less of a drama.
I’m also reminded that, it seems to me, that the trumped-up stature that our institutions get when they are exclusively peopled by old white men from ivy-league schools somehow get brought down to earth and become more accountable when women and POC and non-ivies get in there. I remember when Senators and Secretaries of State and Defense were regarded as demigods because (everyone knew) they were geniuses who left their high-powered jobs and deigned to lead the hoi-polloi for peanuts if only we appreciated them and showed them deference… Suddenly, those demigods became less unchallengeable when women and POC and the rest were there. Similar things need to happen with the SCOTUS.
Having women as a majority of the expanded SCOTUS will help get them back in their lane, even if we don’t agree with all of their decisions.
[/rose-colored-glasses]
Cheers,
Scott.
Ella in New Mexico
@Kay:
Very Trumpian in it’s thinking, wouldn’t you say? Once you’re “in” you’re free. It’s all about getting “in”, after that do whatever you want.
cmorenc
@Omnes Omnibus: Alito is not merely an asshole, he is a self-righteous asshole whose religious zealotry makes him think he’s anointed by God to serve as God’s righteous asshole to implement God’s plans and purposes.
rikyrah
@Kay:
Kay , you are on point
WaterGirl
@rikyrah: Kay is almost always on point.
Jay C
Oh, yeah: right: that “rigorous process” where pre-screened and (when the GOP controls the Senate) basically pre-approved, nominees get a
hearingshowing in front of a pre-disposed Senate Committee, and can freely mislead, obfuscate or outright lie about stuff, assured that it is extraordinarily unlikely there can and will be any negative consequences for doing so? (Principle only applicable to Federalist-Society-approved ideologues/hacks: nobody else need apply).kindness
@sdhays: Would Whitehouse have been able to prevent Feinstein from contracting shingles?
No but Durbin has used the Blue slip rule after Republicans refused to honor it when they ran the committee. Leahy did the same thing after Republicans (back then) refused to use it prior to his taking over. What that means now is any judge nominated to District courts where there is one Republican home state senator doesn’t get a hearing. Democratic Senators who see themselves as traditionalists are fighting with both arms tied behind their backs.
Baud
@kindness:
Do you have a cite? Last I heard, the Dems were using the GOP rule, which is blue chips only for district court judges.
ETA: Do you have a cite that the GOP didn’t allow blue chips for district court judges?
Another Scott
@Baud:
TheHill talks about a FTFNYT editorial from February:
Dunno how Durbin responded, if he did so.
There are too many of these segregation-era “traditions” still active in the Senate and they need to go.
Cheers,
Scott.
Kay
@Baud:
I found out the two women who work up front call people like that “anger bears” which I think is delightful. One looks at the other after angry person leaves or calls and says “anger bear”, knowingly.
t’s so non threatening but also pokes fun at them in a way that diminishes their power.
Baud
@Another Scott:
The question was whether the Dems are following a different role than the GOP did under Trump. I don’t see that.
That’s separate from whether there should be reform generally.
Central Planning
How about they draft a Supreme Court Removal of Thomas for Unsuitable Morals Act, aka the SCROTUM Act?
Baud
@Central Planning:
👍
kindness
@Baud: Senator Whitehouse had said that he would run the Judiciary using the same rules Republicans had been using. ie – no blue slips. Durbin, who wasn’t even on the committee previously pushed himself into the committee and became chair because of his seniority and then instituted the blue slip rule (for District Courts) again. Durbin is posing as having a higher honor quotient than Republicans had had and Joe Biden’s nominees are suffering for his false integrity. Leahy did the exact same thing, although Leahy had been on the committee for years. It drives me nuts!
Jay C
@Central Planning:
That would really take balls…..
Baud
@kindness:
I’d love to see a quote, because last I read, the rule was as it is now. But I could have had bad information.
ETA: Biden also got a lot of judges on the first two years, so whatever they’re doing isn’t hurting too much.
Ksmiami
@Kay: Garbage law being practiced by garbage justices. And the problem with losing institutional credibility is it’s very very hard to get it back…
WaterGirl
@Baud: The question isn’t the number of judges so much as who might be good/great/better – but didn’t get a hearing because of a blue slip.