Ellwood Sanders is a regular contributor to Virginia Right, a conservative blog edited by Tom White. Yesterday he posted an article criticizing Leslie Cockburn and Chuck Schumer for having “perverted legal questions into political ones.” It seems Cockburn tweeted that the Trump Administration demonstrated its “lack of respect for states’ rights and Virginians’ health.,” and Schumer pointed out that the Bret Kavanaugh nomination “would put a dagger through the heart” of Democrats’ belief that health care is America’s number one issue.
This is pretty bog-standard right-wing blogging, with all the projection and terrible logic one often finds. So of course I had to post a comment:
Whether or not Virginia’s uranium mining ban violates the Atomic Energy Act of 1954 is certainly a legal question. But the decision to file a friend of the court brief arguing that it does is a political one. A Democratic administration would likely have chosen not to. Cockburn is right to point this out.
And Schumer is right to point out that a conservative Supreme Court is more likely to strike down existing or future progressive legislation. For all their talk about “legislating from the bench,” it’s conservatives like Mitch McConnell and anti-abortion activists who have most recently politicized the Supreme Court. If the right in fact only wants “qualified judges” on the SCOTUS, Merrick Garland would have a seat.
Conservatives understand that majorities of Americans favor progressive policies like protecting the environment and access to health care. They know Americans by and large also oppose conservative ones like tax cuts for the wealthy and restricting the right of women to reproductive health care. And they know all too well that they can win at the polls only by rigging the system through voter suppression or gerrymandering. So they pack the courts with conservatives to protect their anti-democratic efforts to choose their voters. But they also know that this won’t work forever, so they also need to pack the courts to block progressive legislation when their hold on power finally ends.
In the end, the Supreme Court is no less a political branch of government than Congress or the Executive – it’s just the one designed to protect minority groups and the system itself from attack by the popularly elected Congress and President. Indeed, the Court routinely answers core political questions about the scope of legislative and executive power, and conservatives appeal to this branch as often as liberals when they think Congress or States have exceeded their authority. If the right didn’t believe this, they would not work so hard to pack the court system with judges that agree with them on the issues.
I’ve met Tom White and he’s a nice guy, if a bit libertarian for my taste, and occasionally I’ll read something at Virginia Right that makes sense. This was not one of those occasions.
Let me just say that when the Solicitor General refused to defend DOMA on the grounds that he thought it unconstitutional, you blamed Obama. not the apolitical SG office. Based on your argument in that post, Trump’s SG could have refused to join the attack on Virginia’s power to regulate uranium mining if he believed in states’ rights while allowing a federal judge to write a FOTC brief at the invitation of the court. Because Trump did not do this, I think Cockburn’s claim that Trump does not respect Virginia’s rights has merit.
More generally, I’ll just point out that since Barack Obama won the Presidency in 2008, Republicans have steadily changed the shared understandings with regard to selection of judges for both lower courts and the SCOTUS. To be sure, Democrats ended the filibuster for confirmation of lower court judges and deserve some blame, but the GOP did so for SCOTUS picks, and Grassley has ignored the blue slip process for lower court nominees.
I’m no fan of the filibuster, but this rule and the blue slip norm allowed Senate minorities to influence Presidents when they nominated judges – knowing that a Senate minority could block nominees, Presidents had to confer with Senate leaders before selecting a nominee. In my mind, this is what Madison meant by “advise and consent.” Had the opposing party controlled the Senate, the most recent six SCOTUS nominees would likely have been much more moderate and apolitical – this includes Thomas, Alito, Roberts, Ginsburg, Kagan, and Sotomayor. I think we can all agree that this would have been a good thing.
Reagan ignored Senate Democrats and nominated Robert Bork. Conservatives point to Bork’s treatment as the beginning of the politicization of the Court, and this is arguably true. But Reagan carries as much blame as his opponents, since he chose an extremist judge after Democrats warned him.
Democrats of course had to do this once they heard from constituents that supporters would not accept their approval of a nominee who had followed Nixon’s order to fire Archibald Cox and whose opinions on privacy rights and other issues placed him to the extreme right of American jurisprudence.
Personally, I blame Evangelical Christianity’s political shift from defending segregation to attacking abortion for the growing politicization of the judiciary. They wanted state laws restricting reproductive choice and needed judges that would uphold them. In the end, this is why they support Trump despite his clear personal dismissal of Christian beliefs and the Gospels. He will give them justices that will overturn Roe v Wade. It’s really that simple.
Wish I could think of a way out of this. But our arguments over existential issues has driven us to tribalism. Some of these hinge on religion – those who believe that abortion is murder or homosexuality offends God will do anything to stop it. Others not so much – but you’ll also do anything to prevent gun control if you believe liberty depends on weak regulation of gun ownership.
Crossposted in the comments section at Virginia Right.
Let me return the privilege of a comment:
Thank you R. Stanton Scott for a thoughtful response. I agree that politics and ideology have come to consume SCOTUS decisions since the 60s. I disagree that the response of the US was political. Yes the AG appoints the Solicitor General and by extension the President but if you are looking for a relatively politics free agency in the Federal Government it is the Solicitor’s office. So I respect their work.
My beef here is treating the legal position of the Solicitor’s office as the position of President Trump. That is inappropriate.
Now, as to Judge Merrick Garland, I did not want him to fill Scalia’s seat. I understand there was some precedent for what the GOP Senate did. However, they should have given Judge Garland a hearing; and I explained at this blog that the reason the GOP leaders did not was there was enough squishy Republicans that would have voted for Garland that he would have been narrowly confirmed.
Search for “Garland” for my posts on this.
I think both sides have “packed” the courts with ideologues. I am greatly concerned that the politicization of the courts will result in fewer rights not more.
Thanks for coming by and come by again. You are especially welcome here.
Sandy