Tag Archives: Supreme Court

The Merit of Merrick

Posted on by

merrickgarland

 
Merrick Garland’s cursed voyage in limbo continues; even the prospect of a Trump Supreme Court nominee hasn’t budged Senate Republicans, who care less about getting a qualified nominee than about the potential career consequences if a Supreme Court vote inspires a primary challenger. Merrick’s fate has been especially denigrated because he’s so clearly a qualified appointment. As Michael Gerhardt declared when the nomination was made at Slate, Gerhardt “the nomination of Judge Garland is therefore not a political statement but rather a bold effort to encourage everyone to recognize that if they ever want to see what a merit-based appointment looks like”, they need cast their gaze no further than Merrick Garland.

That formulation is interesting though. So, if you want to see a merit-based appointment, look at Garland. And what do you see when you look at Garland? You see a white guy.

Gerhardt makes this more or less explicit in his piece; Garland, he points out, is not a person of color, nor a woman. He graduated from Harvard Law, which is de rigeur on the court. His appointment does not make a political statement. If Obama had selected a woman, or a black person, it would have been in order to change the gender or racial balance of the court. Since Garland is a white guy, you can be sure his appointment was based, as Gerhardt says, “on merit, not anything else.”

But of course, the very fact that Garland’s white maleness is synonymous with merit is the tip off that “merit” is not, in fact, the only consideration. Or rather, choosing a white man is a deliberate sop. Obama is quite aware that the choice of a non white man would be seen as a provocation, both by Republicans and by neutral serious punditry. To be a woman, or to be a person of color, is to be unusual, special, marked; it means your identity is a statement in itself. White men, on the other hand, are the default; when you choose a white man, you are choosing someone who has no identity, and so can be judged solely on accomplishment and qualifications. It’s natural for white men to be Supreme Court justices; ergo, a Supreme Court justice who is a white man is not chosen for his identity, but for his merit.

There were other reasons to choose Merrick, of course—and they are also linked to his race and his gender. Obama wanted someone who was moderate, to disarm Republican opposition. White men tend to be more conservative than other folks, so looking for a conservative candidate was likely to lead to a white man. Obama also wanted someone older, again to placate conservatives who don’t want a liberal justice sitting for 30 years. Looking for older justices means seeking people from a time when women and people of color had fewer opportunities for career advancement than they do now. Again, that points disproportionately towards white guys.

This isn’t to say that Garland is unqualified. Rather, it’s to point out that his qualifications or lack thereof aren’t separable from his identity. When you want an appointment that says, “quality, and nothing else!” you pick a white guy.

Solving the Supreme Court

Posted on by

I had this brilliant idea about how to fix the Supreme Court, but no one wanted to pay me for it. But the country needs to know! So here it is.

So what is the problem with the Supreme Court anyway? I would say there are 2.

(1) Judge’s have life tenures and life forever now because of pesky improving diet and healthcare. That means that your grandpappy’s electoral preferences determine who gets to marry and have abortions and have labor unions. Nothing against your grandpappy, but people shouldn’t have their lives mangled and stretched by elections that happened before they were born. The court needs to be more accountable to the current electorate. Or, in short, the court isn’t politicized enough.

(2) Partisan polarization means that battles over judges have become completely intractable. At the moment, it’s not entirely clear that we can ever get a judge approved again if the President and the Senate aren’t of the same party. Justices are also forced to try to time their retirement so they’re replaced by a President of the right party. The whole thing is undignified, distracting, and generally pitiful, as well as potentially interfering with the smooth functioning of the court. In short, the court is too politicized.

So, how do you fix the too much politicization and the too little politicization? It seems impossible…but I have the one perfect awesome solution that you can tell is awesome because no one would pay me for it.

Prepare for said solution…now.

Have each President appoint one and only one judge per term. Appointments should happen right after the President is elected; it can be one of the first things the President does.

This of course means that the number of judges on the court will change. But the number of judges isn’t set in stone, or even in the Constitution. It’s been as low as 7 and as high as 10. There’s no reason it can’t vary every four years (or more often if a judge retires or dies mid-term).

Let’s list the advantages of the Berlatsky plan:

1. Every Presidential election will be represented on the court. Voters will know that a vote for President is a vote for one (1) Supreme Court pick.

2. Since everyone knows there is a pick coming, the election will be a mandate for a Supreme Court selection. This will undermine the partisan “wait till the next election” nonsense. To prevent stalling and stonewalling, a bill could also provide that if there is no vote on a nominee within 6 months, the judge is automatically seated. Since everyone knows each president will get a judge, the stakes will be reduced; each party will hope that their own judge will affect the balance of the court in four short years.

3. Retirements would be divorced from Supreme Court nominations. Justices would have much less incentive to time their retirements, since every President would always get one pick, no matter when the sitting justices step down. Presumably, justices would often retire at the beginning of a presidential term, when the new judge would be selected…but if they didn’t, it wouldn’t make no nevermind.

4. At least in theory, this shouldn’t be a difficult reform to pass. It doesn’t give a clear advantage to either Democrats or Republicans; instead, it ensures that each President, from whichever party, has a chance to select a judge with much lower stakes and much less partisan squabbling. It also mean that Presidents, of whatever party, will be able immediately to somewhat reduce the chance that the court will interfere with their policy preferences. Democrats and Republicans alike should like that, since Democrats and Republicans alike always think they’re going to win the next election.

So there you have it. I could see various tweaks—maybe it should be two justices for each President rather than one? But overall, I think it’s a remarkably elegant solution if I do say so myself. Since all the policymakers read the Hooded Utilitarian religiously, I expect it to be adopted any minute now.
 

Screen Shot 2016-03-09 at 10.26.21 PM

I John Marshall, old white dude, and I endorse this plan.

Ginsburg and Breyer Have Doomed Us All

Posted on by

Ruth Bader Gisnburg was honored in Time this week, so there was a lot of Ginsburg love floating around. In response, I thought I’d reprint this Splice Today piece about how Ginsburg and Stephen Breyer should have retired, and now that they didn’t we’re all screwed.
__________

Justices Ginsburg and Bryer chat before Obama's address to a joint session of Congress in Washington

 
It’s increasingly likely that the 2014 midterms will result in a Republican Senate. It’s quite possible that a Republican will be elected in 2016. The government, therefore, is more progressive now than it will be for another six years. Ruth Bader Ginsburg is 81; Stephen Breyer is 75. They are both in good health, but when you get into your 70s and 80s, six years can cause major reversals. If they want their legacy to be carried on by other progressive justices, the smart thing for them to do is retire now. If they wait, and get sick in, say, four years, their replacements could be appointed by a Republican president, and the balance of the court tilted decisively conservative for who knows how long.

Judges who care about progressive goals should try to ensure continued progressive justices on the court. That’s a pretty simple calculus. But Dahlia Lithwick and Garrett Epps both disagree. Epps says that Ginsburg loves her work and that “the timing of judicial resignation is a complex mix of ego, ideas of mortality, political fealty, and dynamics within the Court”—which I’m sure is correct, but doesn’t either refute the electoral calculus, nor explain why it shouldn’t be taken into account. Lithwick, for her part, insists that “arguments about Ginsburg’s political judgment almost by necessity inflect upon her judgment as a whole, and yet nobody has advanced any argument for the proposition that Ginsburg’s judgment is failing.” The reasoning here is that Ginsburg is awesome, her faculties sharp, and that suggesting that she might possibly make an error, or even attempting to present arguments to sway her, is disrespectful. Ginsburg is the Pope; not only can’t you question her pronouncements after she’s made them, you can’t even offer an opinion on a matter where she hasn’t yet weighed in.

Ginsburg and Breyer are powerful and important people in the U.S. government, but they aren’t kings or popes. They’re public functionaries in a democracy—we pay their salaries. Moreover, as Jonathan Bernstein points out, the founders intended judges to be included in the democratic process. Federal judges are appointed by the executive and confirmed by the legislative branch. Executive and legislative elections therefore have a major effect on the judiciary. Pointing that out isn’t bad form or insufficiently respectful. It’s simply acknowledging how our Constitution works.

Of course, the Constitution also says that Supreme Court justices serve for life, or until they decide to retire. No one can make Ginsburg or Breyer leave; it’s a decision they’ll make for themselves. But part of democracy is a free press, and part of a free press is attempting, through argument and reason, to influence policy and political actors. And whether they want to be or not, Ginsburg and Breyer are political actors, and their decisions about when they will retire have enormous political consequences.

Epps says he thinks it’s “bad manners and bad psychology” for anyone to tell Ginsburg (or presumably Breyer) what to do. As far as the “bad psychology” goes, the idea that Ginsburg is some sort of cantankerous child who will stay in her seat just to spite some op-ed writer strikes me as insulting and ridiculous. And for the “bad manners”: well, democracy thrives on bad manners. Deference to power and reverence for position have their place, but in a democracy that should be fairly circumscribed. The Constitution says that Ginsburg and Breyer can hang on as long as they want or can. But it also says that people have the right, and arguably the responsibility, to point out what the political consequences of that political decision may be.