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The Upcoming Supreme Court Nomination

I wish I could be excited about this. I used to follow the Supreme Court nominations, as infrequently as they occurred, very closely. There were many ups and downs, such as when Nixon nominated Haynsworth and Carswell, and they were both stopped by Democrats, so he went with Blackmun, who turned out to be one of the most liberal Justices. Then Douglas (“I know who my friends are”) Ginsburg, who had to be withdrawn because of marijuana smoking history; and Robert Bork, who had views about the Constitution which were arrogantly and frighteningly radical, although now pretty much dogma for the Justices appointed by Republicans, who was defeated by vote, not by “borking,” which the Republicans turned into a dictionary word.

And who forgets Clarence Thomas, a liar and a phony, who said that he had never thought about Roe v. Wade (everyone who ever went to law school after 1972 studied it), played the race card; was somehow allowed to get through, even though George Mitchell was Majority Leader; and who completely unsurprisingly turned out to be such a jerk that he sleeps through arguments, asks almost no questions, and votes the same way every single time; plus his wife is a radical right-wing activist who supports groups whose cases come before him, and he rules on them.

But it used to be that one rarely knew for sure how an appointee would turn out, and it was interesting to study their opinions, and watch their development. No more; we have gone over that, how the Court has been used as a right-wing rubber stamp, as that group has no interest in legal arguments or logic, they just want the Court to throw out Democratic initiatives, and mandate all of the Republican ones, no matter whether they overturn existing laws, violate precedent and stare decisis, and take away Constitutional rights, such as voting, and the right to make decisions about your own body.

And nowhere in all of politics have the differences between how Democrats and Republicans act and proceed, shown up as starkly as the Supreme Court battles. Now some commentators say things about how the Republicans have “outfoxed” or outplayed the Democrats, as if it were some kind of chess or poker game. No, what they did, was to keep violating norms and procedures in their all-out quest to win at any price, while Democrats were not doing it, for various reasons which unfortunately turned out to be less and less supportable, as the country was increasingly controlled by the Radical Right zealots.

And we know the history of Garland, and Gorsuch, and Kavanaugh, and Barrett, and I won’t go over it. And we know that the far right radicals control the Supreme Court 6-3, such a rigid majority, that we have no feasible chance of ever getting a decision on a major case which we applaud. Oh, maybe Trump having to hand over his records, but that is more a process than an individual rights issue. And the people that own these Justices probably are happy enough to see Trump damaged, and then they can support DeSantis, and not have to have Trump weigh them down. But it was something, at least.

So we know that there are rules which Republicans follow to the letter; it was just that people didn’t realize how far they would go. 1) The Republicans will never allow the Democrats to appoint the swing justice, not as long as the Republicans control the Senate, as they will just not allow a vote on him or her. 2) If the Republicans control the Presidency and Senate, they will just ram through their confirmation, no matter how close to an election it is. 3 )No Republican-appointed Justice will ever retire if the Democrats hold the Presidency.

This means that it is almost impossible for liberals to ever get the Court majority again. We would have to win the Presidency six times in a row, or so, and also control the Senate during that entire period. Do you remember when John McCain and Ted Cruz vowed to never confirm any Supreme Court nomination that Hillary Clinton would make? They were serious. Cruz, assuming that she would win, said that there was no problem with an eight-Justice court, and presumably even less, because she was never going to get to appoint a Justice, as long as Republicans controlled the Senate.

So they have set up a system where Democrats can’t get a Justice past a Republican Senate; where the appointees by Republicans are young enough to stay forty years or so on the Court, and will never leave if a Democrat is President. So the only way to get the seats back is for them to die, which no one roots for, but it is the only way they will leave, unless a Republican holds the Presidency, in which case they will all resign in time for new young ones to be appointed, and fill up the bench for forty more years.

Yes, that sounds like a science fiction nightmare, but it is real, their goal is to own the Supreme Court forever, and they well might, unless some brave Democrats in power expand the Court, or alternatively, start ignoring its decisions. Those are radical moves, but probably necessary, unless somehow the political winds shift to the point where Democrats start winning all the races, which does not look to be happening, though one always hopes.

That is why I really am not excited about the open spot, though Justice Breyer did the right thing by leaving now; otherwise a Republican Senate might well block Biden’s nominee, because that is what Republicans do. They can’t block this one, Democrats have the votes. Good.

I am not a big fan of announcing in advance that you will choose a Black woman, or indeed either gender or any race or religion. Oh, it is fine; but I still think it was not ideal to say during your campaign that this is how you would choose. But I am sure that Biden will pick someone with very good credentials. Five or so candidates have been mentioned. I just wish it were more exciting to anticipate.

But 6-3 is 6-3. Over and over again. Only the names and the dissents change. Sometimes dissents are inspiring to read, but decades of them become depressing.

Now, there are a few small pluses here. The choice should motivate Black people, who recent polls actually show losing some support for Biden. Maybe they will fight harder to go out and vote. I know that the vote suppression is not at all their doing, but it is not helpful for some of the spokespeople like Al Sharpton to say that “many of us were offended” (because they think that Biden didn’t push harder for the voting rights bills; e.g., push Sinema and Manchin against their lockers, and hold them there until they agreed to vote for them).

I could say that maybe a fierce and dedicated female Black Justice would shame the radical Right Justices into something or other, but it will not happen. She will just take Breyer’s spot, and be in the minority for decades, unless something really great happens. It is a nice thing, to have the first Black woman Justice, but it will not change any of the awful decisions which will keep coming from the Supreme Court.

I could almost see this appointment as mollifying some people into thinking that the Court is fixed, on the right track, which would be completely wrong. 6-3 is 6-3. What will the Republicans do with this nomination, which they cannot stop? They are all about tactics. They will try to use this as a campaign motivator for their forces. They will also hammer away with questions about Critical Race Theory, trying to make it look as if the nominee, and by extension all Democratic-appointed judges, are going to install it in schools, and somehow force a curriculum which would insult White people, and teach them socialistic things. In that way, they would hope to once again, use the Court nominations as a political weapon.

Actually, purely on tactics, I would not recommend the pick of a Black female Justice at this stage, but I know that this is unfair, something like the arguments which were used against potential Jewish candidates for things, “We don’t want to rile people up.” It is just that after the Virginia gubernatorial race, and what DeSantis and Abbott are doing, and the various states which are passing laws to keep teachers from teaching anything “controversial,” we are giving Republicans more of a chance to put this phony issue out there. Oh if she were the swing Justice, it would be great, but she is only going to be a powerless dissenting voice on the Court, and that is just how Republicans want her to be, campaign fodder.

I know that I should be more upbeat about this nomination, but while I am pleased that Biden gets to make it, it doesn’t change the tableau. Just a couple of more things: I am not a fan of James Clyburn, who calculatedly helped put the “Hillary is a racist” lie into motion in 2008, by saying that he was “very disappointed,” at what, Bill Clinton saying that it was “a fairy tale,” the idea that Obama had been a strong voice against going into war with Iraq, while Hillary, along with 75 or so actual senators, voted for the AUMF? That “fairy tale” comment was somehow deliberately twisted to make it look as if Clinton was impugning Obama’s worthiness, which was absolutely not the case.

Finally, President Clinton, whom the Left still does not like; whom some idiot who wrote an article the other day about how Biden must not turn into “a failed President like Carter or Clinton,” nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. He also presided over record prosperity, helped make the world more peaceful, and left office with about a 62% Favorable rating.

Oh, and he won two terms. But this writer, presumably supportive of Biden, feels that he was a failed president. And I would suggest that this is actually reflective of a major problem with the Democrats, that the “base” has altered, and that the Obama/Biden fork was the wrong one to take, even though we very much hope that it will come out relatively all right in the end.

Viewing the Clinton presidency as a great success, rather than a “failure,” would be a small start in the right direction. Helping Hillary win the Presidency in 2016, would have gotten us at least a 5-4 Court in our favor, and gotten voting rights enhanced; and helped the environment, and so many things. But too many people very foolishly or spitefully did not want to see what was so obvious. Right now, it feels to me as if we have fallen behind 28-0, because we played the wrong quarterback, and are now excited because we have scored one touchdown, to cut the lead to 28-7.

If you think I should be more enthused about this upcoming nomination, tell me, I would rather be excited. But while there are a few things that do offer me some hope on the political front, this doesn’t feel to me like it is one of them. Of course, “A journey of a thousand miles starts with a single step,” a Chinese proverb that one of our high school graduating classes chose as their motto, and which I liked, is hopeful to consider.

Apropos of nothing but mottos; as a senior, I was asked to create our high school class motto, and I wrote, “The hills of education become the mountains of success,” which some classmate later said he liked, but that it didn’t actually make sense, which was sort of true; and I wish I could have another crack at it. I think I wanted to say, “The hills of education grow into the mountains of success,” but some other people preferred “become.” It is still in the little booklets that get made up for our high school reunions. What I meant to say, was that education is the foundation of eventual success, but that is not a visual metaphor.

Our high school was Verdugo Hills High, and my elementary school was Mountain View, so maybe living in the foothills had something to do with it. I always have liked the word “hills,” my favorite racehorse was Hill Rise. I just hope that the companions of the alumni of my high school do not go to the reunions and say, “Who came up with that motto?” Oh, well. I am 15 for 15 on Wordles so far, with only one having taken all six guesses, maybe we could put that in, instead.