The prior assumption of the American people, when it comes to the Supreme Court, is that the qualifications and requirements it takes in a legal career to even be considered for appointment is the safeguard against corruption. We operate under the presumption that the system will weed out the unqualified candidates who allow their personal biases and prejudices to interfere with their judgement. We think that the experience of someone who becomes a lawyer, and must advocate for their client regardless of their personal convicitions and beliefs, is capable of having a clear understanding of the law, enough to be able to use it as the standard in making a ruling as a judge, after having enough experience in a courtroom, and would not resorting to personal feelings or political preferences when ruling.
We were dead wrong in our assumptions.
First of all, experience and record are no longer qualifications for being selected to the federal bench. Political affiliation, favors done, personal political perspective, are now more important. For several decades now, media trash like Limbaugh, Hannity and Carlson, have pushed to get judges appointed based on their political perspective and loyalty to far right wing causes, especially to the lifetime appointments of the federal bench. And when Trump got into office, a man who couldn't care less about the law, and who just does as he pleases regardless of it, he wanted judges who would be corrupt in that they would do him favors for appointing them, rather than rule according to the constitution and the law. And he got some help from his far right supporters who supplied him with a list of names who fit the bill.
Granted, not all of the justices with the worst ethical and moral problems were his appointees. We had plenty of warnings about Clarence Thomas, and we knew what he was before his hearings. But George H.W. Bush was determined to put him on the bench, thinking that the political liability would be small. Sometimes public pressure works, as in the case of Robert Bork, or when W tried to nominate Harriet Miers, but the positions come with almost no accountability and a lot of influence and power.
And, at least up to Trump's Presidency, Democrats were still thinking that politics as usual were in play. You know, the idea that if you are cooperative when the other side is in power, and do a good job vetting their judicial nominees, they'll play fair with you when you're in power. Then Mitch McConnell slammed the door on that, by stealing President Obama's appointment, because it was too close to the election, and pushing through Coney-Barrett, when it was way too close to the election. So I'm of the opinion that Democrats, when they hold the Senate, need to be as firm as possible in putting the most liberal justices into the federal court system as they can find.
In a system with zero accountability, the hearings prior to confirmation are a joke. It doesn't matter what the nominees say, or the answers they give to questions, they can lie through their teeth and still be put on the court, like Neil Gorsuch, Brett Kanavaugh and Amy Coney-Barrett all did when it came to their position on Roe v. Wade. Well, Trump is a pathological liar whose narrative is always pulled out of the air to fool his mindless followers, so why wouldn't he appoint liars to the Supreme Court? That's what he wanted and his conservative supporters only cared about whether or not they would overturn Roe. I read comments in a church newsletter, of all places, expressing confidence in the fact that Gorsuch's statement that Roe was "settled law" was just a political answer to pacify opposition. That's where we are with integrity here, that churches are endorsing judicial candidates who are liars.
The Least Accountable Branch of Government, and the Most Difficult to Resist
I've read the rationale behind the original decision to give lifetime appointments to Supreme Court justices. The hindsight of the founding fathers included very bad experiences from a politically pressured judiciciary, and they were thinking of ways to avoid this problem. It was thought that a lifetime appointment would shield justices from political pressure, the term used constitutionally that they serve "during good behavior." There's a huge implication of trust in that line of thinking, and it is clear that trust has been eroded over time. Good and bad experiences have characterized the Supreme Court's history, but it is my opinion, and I think it is shared by many experts in American civics, that it has never sunk to this current level.
Good behavior? So much for that.
Did the founding fathers imagine that those who would be considered for the honor of a nomination would be of the low character of several current sitting justices, with regard to sexual abuse and misogyny, bribery, and financial impropriety directly affecting cases appearing before them? What would the founders think about the blatantly political character that has emerged since Ronald Reagan made his appointments, and which has continued under every Republican President since then? Would it change their minds about lifetime appointments?
Public pressure can be applied but it rarely has an effect on the Supreme Court. The Republicans experienced a dismal mid-term election performance largely because of something that an unpopular Supreme Court did, and that affected the outcome of the election, but had no impact on the court at all. And as far as "good behavior" goes, in light of recent revelations and news reports, including admissions from the justices themselves, there are at least four of the current Republican appointees to whom that term does not apply. And the only way to get rid of them for it is to get two thirds of the Senate to go along with it, which, these days, is a much more "political" influence than the founders imagined it would be.
So Where Do We Go From Here?
I have a lot of big dreams that I hope will come to pass. What I do know is that as an intelligent, well-educated, observant, patriotic American who loves this country, I will live with what I have to live with, while using my ability as a citizen of a democracy to influence politicians and politics as much as I can. Along with getting rid of the electoral college, placing term limits on Congress and making it a constitutional provision that an individual convicted of a felony cannot be eligible to run for public office, I am in favor of placing term limits on Supreme Court justices. I've heard ten years batted around as a possibility, I'd say, in the manner in which the Constitition provides checks and balances in the three branches of government, a justice of the Supreme Court should not serve longer than a President of the United States. Give them eight years, and that's it.
The same goes for the federal court system. I'd say four year terms would work very well, and if the behavior is "good," meaning that they have avoided partisan bias in their rulings and get a good score from a higher or appellate court, they can have four more years. It might not be a bad idea to put them on the ballot, when their first term is up, and make them get a majority of "yes" votes to stay on the court, at least at the lower level of the federal government.
I hope my Senators are reading this, I'm emailing it to them. I'm in favor of "packing the court" now, if it is at all possible. That's the only way I see that we have to neutralize this particular court, put the Chief Justice in position to act like a Chief Justice, if that's possible with this one, and restore trust to the Supreme Court. It's approval ratings are at historic lows. Two thirds of the electorate does not trust this Supreme Court and that's only going to get worse as the corruption that has been revealed is exposed. Integrity demands that the justices implicated in improper and unethical financial dealings, and clear conflicts of interest, resign.
So because integrity demands it, and they don't have any, that's not happening. The Senate needs to give this President the opportunity to appoint at least four Supreme Court justices with Ginsberg's integrity, intelligence and jurisprudence. Twist whatever arms need to be twisted, break the filibuster and amend the Judiciary Act to allow for 13 justices, or if superstition is a factor, 15. That won't be an unpopular political move and it will send a clear message that the United States is a nation of laws.
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