Public Comment

If a public official is impeached, that is, found guilty of misconduct, proceedings can then take place to remove the individual from office. In the early 19th century, a Supreme Court Justice, Samuel Chase, was tried for impeachment because he allowed his political views to interfere with his decisions. If this principle was applied to the conservative justices generally, very few would have escaped impeachment.

Too many outrageous and notorious Supreme Court decisions have been rationalized by making very flimsy connections to the American constitution. No language in the second Amendment justifies individuals owning guns for personal use. Yet the court ruled in 2008 that the 2nd amendment gave individuals a constitutional right to own guns. This decision motivated millions of Americans to arm themselves. The court's decision was made by five justices who were recommended by Ronald Reagan or George Bush and approved by the Senate majority. When the economic interests of business are involved these judges somehow find a constitutional connection. In this instance they have served the predatory economic interests of the National Rifle Association (NRA). That more than 12,000 people were killed by guns last year, and almost 1300 children suffer gun deaths annually are not among the concerns of the NRA.

These five justices have made many other decisions that have been detrimental to the public and especially the more vulnerable sectors of the public. Think about it --the main problem with the Supreme Court is that although the court plays a major and powerful role shaping public policy it is really a totalitarian institution. Once appointed, the justices are beholden to nobody, not even to the president who nominated them nor the senators who confirm them. Because these justices enjoy a lifetime appointment, they can and often do ignore public opinion. 

Particularly troublesome has been the Supreme Court's decision to gut an important provision of the 1965 Civil Rights Act which required states with a history of minority discrimination to obtain federal permission to change voting regulations and procedures. As a result a huge numbers of African Americans and many low income citizens have lost their right to vote. Incredibly, five Republican Party Justices made a decision that threatens both the lives and the democratic rights of millions of Americans. And unless these decisions are overturned, these drastic changes will remain even after they are gone.  

How the Democrats voted on the nominations is quite distressing. Reagan nominated both the very conservative Antonin Scalia and Anthony Kennedy, who also tilts in a conservative direction. Both nominees received 100 percent of the votes of the Democratic Party senators. The conservative John Roberts was nominated by Bush for the Chief Justice position. The Chief Justice has considerable power. He determines the weekly agenda, has considerable say about what cases should be selected, and is also the chief administrator of the federal courts. That is a too powerful position to take casually. Yet, there was not only no major debates about confirming Roberts. Also, fifty percent of the Democrats voted in his favor. 

Unfortunately there is a pattern of voting for Supreme Court nominees by both parties that favors the Republicans. When the Senate Democrats are voting on behalf of a candidate proposed by a Republican president, they have tended to vote in favor of the Republicans. However, the Republicans are much less likely to support the preferences of a Democratic President. The obvious reason for the difference is that the Republicans shutter at supporting the nomination of liberals, or any candidate who could be vulnerable to pressure from below. More likely, the Democratic Senators feel much more comfortable with having colleagues on the political right than on their left. Perhaps you are familiar with the recent purge by the Chair of the Democratic National Committee of many progressives from key positions while appointing several individuals with corporate-interest backgrounds. 

During the terms when all but one of the nominees were confirmed, the Republicans held a majority of the Senate seats. Wouldn't we expect a different outcome if the Democrats were the majority? Unfortunately, it is not necessarily so. Although the Democrats were a majority when the conservative Clarence Thomas was nominated by Bush, he nevertheless obtained a seat on the Supreme Court. 

In fact, Thomas would have breezed through were it not for Anita Hill's accusation that he engaged in improper sexual conduct. Among Thomas' strong supporters initially was Senator Biden. When he chaired the Senate Judiciary Committee to examine the charges, he was accused of being partial To Thomas. 

However, the issue soon became national news. The committee televised the three days of hearings, which millions of listeners watched. Moreover, Thomas was vilified by the press. Afterward Biden and many other Democrats decided to change their minds and vote against Thomas. Still, eleven Democrats supported Thomas, and so he squeaked through by 52-48.  

The national publicity certainly played an important role in narrowing the vote margin. Still, if just three more senators voted against confirming Thomas, he would not have been appointed. Could it have been that despite the sexual harassment charge, not enough senators were troubled by his political conservatism? Certainly Biden wasn't. Here is an interesting perspective on this issue suggested by Barak Obama. Obama acknowledged what he refers to as a well known secret of legislating. Senators could feel free to vote against a candidate provided that there is still sufficient support remaining for the candidate to assure a successful confirmation.  

Currently, the conservatives hold a five to four majority of the Court's seats. So the prospects of the conservatives maintaining a majority on the court are not only very likely.. Particularly worrisome is that Trump may be able to nominate other candidates that are right wing extremists, who could dominate the court for many decades. Replacing the deceased Scalia with his ideological twin, Neil Gorsuch would have made Scalia very happy. Since Gorsuch is only 50, he has many years ahead to do what he can to undermine civil rights and human rights. Trump may be enjoying another opportunity soon to increase the number of hard right justices. The liberal Justice, Ruth Ginsberg, who is 84 years, may be retiring soon. Also, Kennedy, who is over 80 years, is considering retirement. Although Kennedy is among the conservatives, he also votes occasionally with the liberal justices. He too would probably be replaced by a candidate on the hard right. The aggregate result of Trump's efforts to stack the Supreme Court could be to provide the public with the most reactionary court for many decades.  

However, the combination of a strong disdain for Trump along with the Senate elections coming up in November 2018 may have convince the Democrats to trade their acquiescence for an adversarial approach. So far, Senate Democrats have used the filibuster to prevent the appointment of 27 nominees to fill important administrative posts, including Secretary of Education (Betsy DeVos), Secretary of Labor (Rene Alexander Acosta), and Attorney General (Jeff Sessions).  

Also, the Democrats attempted to prevent a vote on Gorsuch by filibustering the Senate. But it failed because the Senate Republicans voted to reduce the minimum number of votes required to end the filibuster from 60 to 51. Unfortunately, none of the challenges were successful, but the Democrats at least tried. 

Although the conservatives control a majority of the Supreme Court seats, the public at large is far from helpless. As the historical record tells us, building an effective response both electorally and on the streets are certainly doable. Grass roots movements have made tremendous gains despite the indifference and resistance of the Supreme Court and other courts as well. During the 1930s, for example, enormous political and economic gains were made despite a conservative court system. And even conservative judges have been flexible when confronted by formidable opposition. The civil rights movement is an example of how those at the bottom of the ladder can effectively influence those on the top. Although the Supreme Court can slow things down, people often are victorious when they stay awake, stick together, organize, and keep on moving.