I am positive that Biden's first priority is to choose a Justice who will vote essentially the way Breyer has been voting on politically sensitive matters. After all, 3-6 is not a great hand, but it is better than 2-7. He has said that he will pick a black woman because it helps him with much of his base and because he is confident he can do it without compromising that prime directive. None of this is complicated, though it seems to have set off the predictable conniptions among those for whom having conniptions is part of a business model.
There is nothing distinctive about specifying demographic classifications in this way. LBJ nominated Thurgood Marshall, the first black Justice, in August 1967. His key Civil Rights legislation, won by breaking filibusters, were fresh memories and for some fresh wounds. Nobody bothered pretending the Marshall nomination was not race conscious.
To make this a bipartisan point we need only note that Ronald Reagan said during the 1980 presidential campaign that he would put the first woman on the court. It was a blatant effort to lessen what people then referred to as the "gender gap" between the parties. It worked, the gap was actually small when the votes were counted that year, and Reagan put Sandra Day O'Connor on the court. Again, nobody pretended she just "happened to be" a woman.
How do such appointments turn out? Well, I think both O'Connor and Marshall put in a respectable performance at their jobs. Neither of them, frankly, set the world on fire. Neither of them disgraced their high office, either.
By what metric am I measuring? Personally, I believe that the greatest US Supreme Court Justice ever was Hugo Black. Black is best known for his insistence that the phrase "no law" in the first amendment means what it says. NO LAW abridging the freedom of speech means ... zero laws, nada as to law, a void of lawhood in the matter of abridging freedom of speech. Language so emphatic demands respect. That insistence isn't the only thing I admire about Black, but it is a good start.
Hugo Black, of course, was a white man. Roosevelt wouldn't have dared nominate anyone who didn't fit that description. Further, Black was a Protestant white man. What is more sobering ... he was a former member of the Ku Klux Klan. Which leads us to an important point, so I will go into it a bit here.
Black spent the early 1920s in the practice of law in Birmingham, Alabama. He generally represented accident victims not getting their due from an insurance company. He noticed early on that there was a Klansman on most juries, sometimes more, and the insurance companies' lawyers were often Klansmen themselves. He joined the Klan to be, as he put it when he was older and wiser, "even up" with the other lawyers in the eyes of the jurors in such situations.
That doesn't excuse his membership in the Klan. It merely provides context. And leads to my point. Great Justices are rare. No President is LOOKING for the next great Justice, the next John Marshall or Hugo Black, when making a nomination. Nor is there any reason to believe any effort at such a search would be successful or even advisable. It could do more harm than good. It could lead to excluding a Hugo Black who has a flawed past. In that sense: merit is overrated. The lightning of greatness will hit when it hits.
What else does "merit" mean when people complain that being suited to a President's demographic base is not "merit" oriented enough? If we count life experiences, then Hugo Black gets points for having practiced law in the service of accident victims and against the well heeled insurance companies. THAT experience may have helped make him ... Hugo Black. And a demographics
guided choice may for all I know help Biden pick somebody with respect to whom lightning will strike.
But let's look at Trump's three nominees. These are all "merit" appointees in one very obvious sense: they are all graduates of elite law schools. Gorsuch, Kavanaugh, and Barrett studied law at Harvard, Yale, and Notre Dame respectively.
Hugo Black graduated from the University of Alabama School of Law. I intend no disrespect to the U of A, then or now, but it has never been regarded as on a par with the three I just named. Looking at elite academic institutions as a passport of MERIT is a lazy notion, and one which the Trumpists (who sneer at just those institutions when it suits their purposes) cannot with any consistency maintain.
It seems to me, then, to chase a will-of-the-wisp to demand a pure merit appointment, independent of the usual political calculations, and life experiences, of which demographic categories MAY serve as some totem.
Now of course in some imagined day we might be able to drop the business of discussing these demographic categories, and we may well welcome that. That will happen when all the "firsts" have happened already. Then it will be, "okay, another black woman. So what? Tell me what you know about her character!" That may well be a great day. That day is not today.
I haven't brushed up on Hugo Black's Supreme Court opinions or other writings, but I doubt that he took the First Amendment's NO LAW abridging the freedom of speech literally. Nobody takes it literally; no First Amendment absolutists exist, even if some people claim to be one.
ReplyDeleteA First Amendment absolutist would allow people to threaten to murder one another, would allow false advertising, fraud, defamation, fighting words (face-to-face insults likely to provoke violence), speech intended to incite imminent lawless action such as a riot, child pornography (photos constitute speech under the First Amendment), and other speech long accepted as not protected by the First Amendment.
Henry,
DeleteYes, you happen upon what was even as Black was expounding it a common objection to his view. to which he responded in various ways throughout his later years. In some of the matters that you name, for example, Black would have invoked the speech/conduct distinction to reconcile necessary qualifications with absolutism.
For Black, it was pure speech about which one could be an absolutist, not expressive conduct nor even what he sometimes called "speech plus." Speech plus could be regulated, depending on how dangerous the "plus" was. I believe he understood both incitement and child porn in this manner. Also, that favorite subject of the professor who taught me first amendment law many years ago -- the 2 AM loudspeaker-equipped campaign truck making its way down a residential street.
https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1152&context=llr
As to defamation, my memory of that first amendment course tells me that Black wanted eliminated the whole area of tort law dedicated to defamation, root and branch. He thought the court had wimped out in cases like TIMES v. SULLIVAN, with Brennan's decision for the Court. In this spirit, he wrote a concurrence there: "Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials."
I think his view of porn that does not involve child actors was much the same as his root-and-branch view of defamation law.
It is a huge subject, but at the end of the day after passing through the weeds of it I will surely maintain my view that Black was the Justice against whom it is fair to measure others, even the other great ones.
Christopher,
DeleteLimiting the use of a loudspeaker at 2 a.m., as you know, is known as a "time, place, and manner" restriction. It limits noise, not speech. It wouldn't matter whether the loudspeaker were playing a recording of words or of a jackhammer drilling into concrete. In either case, it would interfere with people's sleep.
I have some sympathy with Black's take on NY Times v. Sullivan, but what about an employee who dislikes a fellow employee and falsely accuses the fellow employee of embezzling from the employer and gets him fired? Would Black somehow find that speech-plus?
As for porn that does not involve child actors -- so-called "obscenity" and child pornography produced without child actors -- the Court has never claimed that it causes harm. Its sole reason for allowing legislatures to ban it is the justices' prudery. The closest that the Court has come to justifying a ban is its meaningless statement that a ban preserves "the social interest in order and morality." Roth v. United States, 354 U.S. 476, 483 (1957). You don't have to be Hugo Black to find it protected by the First Amendment. Anyone with the slightest respect for the First Amendment would find it protected.
You refer to "a pure merit appointment, independent of ... life experiences." But life experiences can be part of pure merit. One of Biden's front running nominees, Ketanji Brown Jackson, "saw impact of harsh drug sentence firsthand," according to a Washington Post headline. Her uncle had been sentenced to life in prison for possession of 14 kilograms of cocaine. A friend of hers said, “For Ketanji, the law isn’t just an abstract set of concepts. Her family’s experience does inform her awareness of the real impact the law has on people’s lives.” That fact gives her a qualification to be a justice of the Supreme Court that others lack.
ReplyDeleteFor another example, Georgetown University Law Center professor Paul Butler, who is African American, wrote in the Washington Post recently, "I got into Yale University and then Harvard Law School because of affirmative action." He told Justice Sandra Day O'Connor that fact, and, "[f]our weeks later, O’Connor cast the deciding vote upholding the University of Michigan’s consideration of diversity in admissions to its law school. He added that he takes no credit for that, but it is possible that he had help persuade O'Connor as to the merits of affirmative action.
Therefore, it is not true that "in some imagined day we might be able to drop the business of discussing these demographic categories." Some people will always bring experiences to the Court that others lack.
I'll just change the subject a bit to say that my routing interest is engaged on behalf of the South Carolinian on the short lists: U.S. District Judge J. Michelle Childs, and not only because I'm impressed by the width of an alliance in her support that includes Lindsay Graham as well as James Clyburn. More to the point, and contiguous with your point: her life experience involved work with the South Carolina law firm Nexsen Pruet, where she (gasp!) worked for for-profit corporations. For me, that is a feature, not a bug. The fact that some parts of the Democratic Party seem to think it is a bug makes it a better feature.
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