“All the world’s a stage, and all the men and women merely players.” Sometimes politics is like that line from Shakespeare’s As You Like It, and this includes Supreme Court politics, which has come to resemble the rest of Washington’s hall of mirrors.
Consider Neil Gorsuch. We’re supposed to believe Bernie’s tweets to his huge fan base and Schumer’s lachrymose caricature of Broadway queen to Trump’s Henry VIII when they put on their “Gorsuch is unacceptable” routine.
But Gorsuch is acceptable. He’s very acceptable.
My worry is not that Gorsuch will get Borked from his seat, but that the whole threat of a filibuster is a false flag operation and that Gorsuch will turn out to be a Manchurian candidate.
Paranoia? Consider the facts:
Earl Warren was selected by President Eisenhower to be chief justice in 1953. Eisenhower thought he was selecting a reliable conservative; later he would say that picking Warren as chief justice was the biggest mistake of his presidency. The Warren court issued a range of stunning decisions that created judicial activism as we know it today. Warren was the last person you’d suspect of being a starry-eyed utopian. He interned the Japanese during WWII, for Chrissake! On paper, he looked like a civil libertarian’s nightmare. But there he was, moving the mountain to Mohammed in the cause of our very own Cultural Revolution. (Oddly enough, Warren wouldn’t have seen it that way. He thought he was just finishing what Lincoln started and General Sherman failed to complete.)
Warren Burger was nominated by President Nixon in 1969 to undo Warren’s damage as chief justice. Burger was supposed to be an advocate of a literal, strict-constructionist reading of the U.S. Constitution. He wasn’t. Instead, he delivered a devastatingly liberal series of decisions on abortion, capital punishment, religious disestablishment, and school desegregation. Just think “bussing.”
Harry Blackmun, picked for the court in 1971 by President Nixon, was a lifelong Republican, and was expected to adhere to a conservative interpretation of the Constitution. Instead, he became one of its most liberal justices, authoring among other gems the 1973 Roe vs. Wade opinion legalizing abortion.
John Paul Stevens, a “conservative” Republican appointed by President Ford in 1975, went on to become the most liberal justice ever seen until the Clinton/Obama appointments of Ginsburg, Breyer, Sotomayor and Kagan.
David Souter was appointed in 1990 by President George H.W. Bush, whose chief of staff, John Sununu, told him that Souter would be a “home run” for conservatism. Souter was a disaster: a totally reliable liberal vote, completely at odds with the pro–states’ rights, pro–prayer in schools, pro-life, anti–affirmative action views that make for a judicial conservative on the modern court.
Anthony Kennedy, a Republican nominated by President Reagan in 1987 to break the East Coast stranglehold on the court, voted to uphold Obamacare, wrote opinions mandating homosexual marriage and race-based university admissions, and in general loves to strike down anything Texas. He seems to have veered megalomaniacally left since he became the most senior justice on the court following Scalia’s death in February 2016.
Honorable mention goes to John Roberts, nominated by President George W. Bush in 2005, who bolted the conservative wing of the court to write the opinion upholding Obamacare in 2012.
These men were appointed by presidents with good motives. They were thoroughly vetted. Yet all succumbed to the temptation to legislate social justice from the bench.
Why does this happen? Maybe Republicans are lousy at picking justices. More likely, once seated for life, the power goes to Supreme Court Justices’ heads. Just as presidents don’t get remembered for the wars they avoid, Supreme Court justices feel they can only make their mark by creating something new. There aren’t many landmark decisions that state, “That’s not our job.” Even though, when it comes to lawmaking, it’s not.
I don’t like have so much riding on this one man Gorsuch. John Derbyshire has voiced concerns that Gorsuch may not be “one of us” due to his Episcopalian liberalism and such like. We shouldn’t have to be that worried about tells from a man’s private life.
Even if Gorsuch does turn out to be the next Rehnquist or Scalia, they weren’t perfect. And we’d still have Ginsburg, Sotomayor and Kagan.
The only solution is to reign in the judicial power. The problem, after all, is not that some justices turn out to be rotten apples. It’s that we can’t throw them out.
& beyond all that, please do: