Who’s #9? — Filling Notorious RBG’s Supreme Court Seat

September 18, 2020 arrived, and then there were eight. The U.S. Supreme Court, which consists of nine justices, lost the beloved Ruth Bader Ginsburg that day. Her passing left a whole in the hearts of many as well as an empty chair on the Supreme Court bench. While no one can ever fill this “rock star” justice’s shoes, the court proceedings must go on; thus, a new justice must be selected and seated. Cue the controversy and contention to see who’ll be #9.

Selection of a new Supreme Court justice is a joint undertaking. Under the Appointments Clause of the U.S. Constitution, (found in Article II, Section 2, Clause 2 for you non-political science majors), the president is empowered to nominate individuals for public office, including Supreme Court justices. This provision means that President Trump, who will remain the sitting president until noon on January 20, 2021 even if he loses the election, nominates his choice to fill the ninth seat on the high court. That nominee is, of course, Amy Coney Barrett. Bottom line? He wants ACB as RBG’s successor.

But the U.S. Senate plays a big part in who’ll be #9 also. As provided in the Appointments Clause, that legislative body must confirm the nominee. The executive branch and the legislative branch have to work together to add to the highest court in the judicial branch. Is it just me, or is anyone else wondering if the concepts of cooperation and collaboration are grasped in our nation’s capital? 

Controversy has erupted over whether President Trump should be able to fill this judicial position. Why? He may be soon headed out of the White House if he loses to Biden. Politics aside, the answer seems clear under the express language of the Constitution. It says the president is empowered to nominate a judicial candidate. And Trump is the president. There is no asterisk to the Appointments Clause that says “except for an election year when the sitting president might lose the election and vacate the office a few months later.”  Call me a literalist, but this is the common sense meaning of the document’s express words. Don’t take my word for it;  read the constitution provision for yourself. You do have a personal copy of this important document, right?

So how does this replacement process work? Now that President Trump has nominated ACB, the Senate Judiciary Committee, chaired by Lindsey Graham of South Carolina, takes over. Twenty-two members comprise the committee; twelve of its members are affiliated with the majority (Republican) party and ten are associated with the minority (Democratic) party. Confirmation hearings, scheduled to begin October 12th, will be held during which ACB can make an opening statement and be questioned–or grilled depending on the committee member’s party affiliation.

In the end the Judiciary Committee will vote to confirm or reject the nominee. I may not be a math whiz, but ACB should clear this hurdle if the votes are made along party lines–12 Republicans outnumber 10 Democrats. Indeed, Chairman Graham has stated that his committee will approve the nomination on October 22nd.

If, as expected, ACB’s nomination passes the Judiciary Committee, the matter will taken up by the full Senate. This legislative body is currently controlled by the Republicans who hold a  53-47 seat edge. A simple majority vote is required for confirmation, and a vote is anticipated by the end of October. 

ACB should be given a thumbs up since the Republicans control the Senate . But how boring would an easy vote be? Drama is promised as two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, have stated they believe the next president should pick the nominee. They presumably then won’t vote to confirm ACB. The Democrats will attempt to sway other Republicans to reject the nominee. But if the vote ends up being tied, President Trump can breathe sigh of relief as Vice President Mike Pence would cast the tie-breaker vote. (No, drama there as to which way HE’D vote.) 

The full Senate vote is not the end of the process. Once the Secretary of the Senate advises the president of his nominee’s confirmation, the chief of state must sign a commission officially appointing the new justice. But wait, there’s more! Finally, comes the ceremonial part. The new justice must take both a constitutional oath and a judicial oath. The confirmed nominee raising her right hand to take these oaths is the photo op with which citizens are familiar. 

Who is ACB though, and why would Democrats oppose her confirmation?  Barrett is a 49 year old Caucasian female. If seated on the Supreme Court, she would be its youngest justice. Since justices serve for “good Behaviour” (interpreted to mean for life), Barrett could serve on the court and influence it for decades.

ACB’s  legal qualifications are impressive. She received her law degree from Notre Dame, is currently a judge for the 7th Circuit Court of Appeals, and has served as a law professor at her alma mater, being named as the distinguished professor of the year three times. She teaches Constitutional law, statutory interpretation, and civil procedure (boring rules of how cases are handled for you non-lawyers). ACB also has experience in the Supreme Court itself and is familiar with its operations. She served as a law clerk for Justice Antonin Scalia from 1998-1999. Now she could have folks, clerking for HER.

Judicial qualifications aside, ACB is a great multitasker. She is the mother of seven (five biological and two adopted); her youngest child has Downs Syndrome. Barrett juggles raising a large family (with help from her lawyer hubby), serving as a judge, and teaching law school. Any one of these activities can be a full-time undertaking. If she can manage all that, she could manage stepping up to the high court. 

So what’s objectionable about ACB to Democrats, other than the obvious of her having been nominated by President Trump? She is a conservative and a devout Catholic. Her views, they fear, could lead to the overturning of Roe  and rejection of liberal positions. In a previous interview, Barrett has stated that her faith would not impede her ability to carry out her judicial duties, i.e., she knows what the law is and will apply it. 

We’ll have to stay tuned to see if ACB will be approved to follow RBG and become the fifth women to sit on the high court. Only eleven Supreme Court nominees have been rejected by the Senate since 1789, the last time being Robert Bork in 1987. But this is 2020, so in this year anything can and may happen.

Just WONDER-ing:

Should Donald Trump, as the sitting president, make a Supreme Court nomination even though he might lose the upcoming election? If a candidate is qualified, should he/she be rejected due to their political or religious views? What questions should be asked ACB during confirmation hearings in the Senate Judiciary Committee?

 

 

 

 

Inside Edition: U.S. Supreme Court

 

What do Carnegie Hall and the U.S. Supreme Court have in common? The way to get to both places is to practice, practice, practice. For the former you practice an instrument, but for the latter you practice the law.

I’ve practiced law for over thirty years, and this practice allowed me inside the highest court of the land this week. And I wasn’t there just as a visitor. I was admitted to the United States Supreme Court Bar Monday.

Surprisingly, becoming a member of the United States Supreme Court Bar has a requirement even Supreme Court justices don’t have to meet. What’s that? Well, you actually have to be an attorney. Supreme Court justices must be nominated by the president and confirmed by the Senate, but they don’t have to be attorneys. Currently, all sitting justices are attorneys, and it would be a miracle for a non-attorney to be appointed in this day and age.

Why do attorneys want to be admitted to the U.S. Supreme Court Bar? On a practical note, you cannot appear for argument before the high court without such admission. But, hey, let’s get real. Most members of the Supreme Court Bar will never conduct an oral argument in the there. But having the impressive framed certificate on your I Love Me Wall at work tells the world that you COULD.

There are perks to being a member of this bar. First, members have preferred admission to court proceedings. Seating in the courtroom is extremely limited, and the public has to stand in line for first come, first seated seats. The Supreme Court Bar has its own seating section for which the lines are much shorter. And this seating is pretty sweet–in front of the bronze railing (the “bar” of passing the bar reference) and directly behind those attorneys conducting oral argument. These wooden chairs  aren’t comfy, but their desirability is for their location.

Another perk for Supreme Court Bar member is access to the fancy Supreme Court library on the building’s third floor. You don’t need a library card to get in, but I was given a “BAR MEMBER” tag by the Clerk’s office to allow my entrance. A voluminous amount of law volumes are kept in the library. Energy conservation is a priority, and various rows of bookcases have a light switch on the bookcase’s end to flip on when one wants to go down that row.

Sadly, Supreme Court Bar members are not given access to the gym on the fifth floor of the building. In the original plans this area was designated for storage, but as the years passed personal fitness took priority. The Supreme Court gym includes a basketball court dubbed the “highest court in the land.” When the justices aren’t playing hardball with appellate attorneys in the courtroom, they can dribble a ball on the basketball court in the same building to let off steam.

The Supreme Court’s operation has been affected by post-9/11 security concerns. The photogenic steps rising to the front doors of the building are available for taking photographs, but you can’t get inside that way. Entrance is now only through the ground level plaza doors which funnel visitors through security screening. And, in order for me to enter the courtroom, I had to go through security a second time outside the courtroom doors.

Camera buffs will be sorely disappointed at the lack of photo ops. Take as many shots as you want outside the building and in the entry hall, but NO RECORDING DEVICES (audio or visual) are allowed inside the courtroom. Just in case you missed that directive, don’t worry; you’ll be told repeatedly that cameras and cell phones are forbidden.

The Supreme Court Justices hear oral arguments in the courtroom and announce their decisions there as well. The majority opinion’s author reads it aloud, but, as was noted above, the pronouncement is not recorded by visitors or media in the courtroom. Prior to my admission ceremony, Justice Elena Kagan read the court’s unanimous decision in Thacker v. TVA. So, for a few brief moments, only those in attendance in the courtroom knew what has been decided. Once court is adjourned, the rest of the world gets clued in.

Although the Supreme Court has been around for a long time, its current digs have not. After being in several locations in various cities (New York and Philadelphia in addition to D.C.), the high court found its permanent home at 1 First Street. Its residence there, one block east of the U.S. Capitol, got off to an exemplary start.The building’s construction budget was almost ten million dollars, but the project came in $94,000 UNDER budget. Talk about judicial economy!

The breathtaking marble structure does not look like a budget job. It truly inspires awe and reverence for the judiciary. The courtroom is not big from a seating perspective. But its ceilings are extremely high, and 24 columns made from Italian marble add to the grandeur.

Like the Supreme Court Bar, the Supreme Court Justices have special seating. They sit in big chairs on a raised platform at the front of the courtroom behind a bench made of Honduran mahogany. (So much for buying American…). Seating is assigned based on seniority. The Chief Justice sits in the big chair in the middle; the next senior justice (in terms of length of service) sits to his right, and the second next senior justice sits to his left. Seating by seniority continues on a right then left basis. Hopefully, the justices know where they supposed to sit, but for the rest of us, here’s the seating chart. From left to right it’s Gorsuch, Sotomayer, Breyer, Thomas, Roberts, Ginsburg, Alito, Kagan, and Kavanaugh.

To keep things moving in an orderly fashion, the justices are assisted by a clerk of a court and a marshal. The day of my admission, the clerk was nattily clad in a morning coat, and the marshal (a female) wore a broad tie and coat. Numerous security personnel dressed in dark suits were peppered about the courtroom keeping a wary eye on those seated before them.

The proceedings are punctual. At the stroke of ten, a buzzer sounded, and the curtains parted to reveal the entrance of seven justices. To justify their existence, the security detail solemnly motioned those in the courtroom to stand as the justices entered. But wait! Aren’t there NINE Supreme Court justices? Sure are. Two justices were playing hooky. It was Monday morning, so maybe they had been living it up a bit too much over the weekend.

In literally ten minutes’ time, the justices announced a decision and swore in three groups of attorneys to the Supreme Court Bar. Then they rose, the security personnel made hand gestures to direct those in the courtroom to rise, and the justices exited. Clarence Thomas is not only a legal scholar, but he is also a gentleman. He gallantly aided RGB in stepping down off the bench and out of sight. The new bar members were then perfunctorily ushered out of the courtroom.

What’s the hurry? Well, the justices are very busy at this time of the year. Oral arguments have ended, and less than half of the opinions for this term have been released. Around 70 decisions are rendered each term. Those 70 cases are the favored few chosen to be heard. Of the 7,000 to 8,000 appeals made to the U.S. Supreme Court each year, only about 1% are actually taken up by the high court.

Following the admissions ceremony, my group of new bar member  returned to the East Conference room where we had previously assembled for breakfast. A court photographer was summoned. (Yes, HE gets to have a camera in areas forbidden to the rest of us.) Then, who to our wondering eyes should appear? No, not Santa. RBG!!! She came to personally congratulate us on our admittance and joined our group for an official photo.

Justice Ginsburg wittily told us that since we had now been admitted to the Supreme Court Bar, she hoped we’d “come for the show.” Professionally, arguing before the Supreme Court sounds appealing. Who wouldn’t want to list arguing before the Supremes on her resume? But personally I would not wish the lengthy, expensive, and emotionally draining years long appellate process on any client of mine. I am satisfied to have simply had my ten minutes in the courtroom of the U.S. Supreme Court a few feet away from the Justices where I merely had to raise my right hand, smile, and say “I do.”

JUST WONDER-ing: How many of the U.S. Supreme Court Justices can you name? (Hint: All of their last names appear in the post above.) Can you name a famous Supreme Court decision? What’s something new you learned about the Supreme Court from reading this post?

 

 

Disorder In The Court

 

It’s the Fourth of July, so Americans are busy celebrating the founding of our country–squeezed in somewhere between going to the beach, grilling out and shopping red, white and blue sales. What all those activities have to do with the signing of the Declaration of Independence on July 4, 1776. I’m not sure. What I am sure of is that most citizens have a good grasp on our country’s inception (Boo King George! Yea George Washington!), but they are uniformed about, and perhaps uninterested in, current events affecting our government..

The revered Declaration of Independence begins with the words “When in the course of human events it becomes necessary….”  Back in 1776 it was necessary for the colonists to get out from under British rule.  Fast forward to 2018.  The British are out and so is a sitting United States Supreme Court Justice.  Anthony Kennedy, the tie-breaking voter on some of the court’s biggest cases, has announced his retirement at the end of this month.  Please raise your hand if this situation is the #1 topic at the water cooler at work.  I thought not.

Sadly, most Americans don’t even have a grasp of what SCOTUS is much less what’s going on there.  The Supreme Court of the United Status (edgily referred to as SCOTUS) is the highest federal court in the country and is in the judicial branch of our government.  It is composed of nine justices who may collectively be referred to as the Supremes, but the group has nothing to do with singing.  The members of the court are not elected (that would apparently be too political); justices are nominated by POTUS (President of the United States) and confirmed by the Senate (SOTUS?).

Even though SCOTUS is not a political body, a big political battle is brewing because the next justice confirmed will have the opportunity to shift the court to the right for some time to come.  Upon Justice Kennedy’s retirement,, the remaining eight justices will be split between four liberals and four conservatives, i.e., a Mexican–er, American–standoff.  Stephen Breyer, Elena Kagan, Sonia Sotomayer and Ruth Bader Ginsberg were Democratic (liberal) nominees and John Roberts, Neil Gorsuch, Samuel Alito and Clarence Thomas were Republican (conservative) nominees.  President Trump, being a Republican and a conservative, is going to appoint a conservative.  But whomever he appoints has to get past the Senate which is composed of a good number of Democrats/liberals.  Prepare for a rumble on Capitol Hill!

A justice confirmed now will be able to exert influence for many years. Justices have a lifetime tenure, so once a justice is on the bench, the country is stuck with him until he dies or retires. Justice Ruth Bader Ginsburg, age 85 and a liberal, may die with her robe (not her boots) on because she does not want to allow the current conservative president the chance to replace her with a conservative justice. President Trump has already been through this process once when he nominated conservative Neil Gorsuch

The president’s nominee is to be announced on July 9th, the day before President Trump leaves for a presidential trip to Europe.  Twenty-five people are on his consideration list, all but one of whom are judges; the odd man out is Utah Sen. Mike Lee, an attorney and former assistant U.S.Attorney.  So far, so good. The President is astutely considering only those with judicial (and in the case of Sen. Lee, legal) experience.

News reports indicate that there is now a shortlist of candidates.  While it is uncertain who will be chosen, it is clear that Trump’s choice will be someone who can “serve for decades,”  i.e.., someone relatively young. Trump may be in office for only a few short years, but he can leave a living legacy on the bench in the Supreme Court building.

A frontrunner is said to be Judge Amul Thapar, a U.S. Circuit Court of Appeals judge.  Thapar is appealing because he would be the first American of Indian or Asian descent to receive a nomination. Amy Coney Barrett, another federal appellate judge and former Notre Dame law professor, is also a top contender.  Sure there are already women on the court, but do any of them have seven children like she does?  Are large families appropriately represented on the high court?  Being PC is all well and good, but this is the highest court of the land, so perhaps we should just aim to select the best qualified candidate regardless of race, gender, nationality descent, size of family, etc.

SCOTUS is in summer recess, but a judicial decision, i.e., confirmation of the newest SCOTUS justice, is expected before the first Monday in October, the day the high court traditionally reconvenes after its summer recess.  For the time being, all eyes will be on a decision about SCOTUS rather than from SCOTUS.  No matter who is added to the high bench, Americans should be interested in what’s going on with SCOTUS every day, not just on July 4th.  Regularly exercise your independence by staying in the know about SCOTUS.

JUST WONDER-ing:  Before your read this post, how many of the nine SCOTUS justices could you name?  Were you aware that Justice Kennedy had retired?  Did you already know what the acronym SCOTUS stands for?