Should Breyer retire? When the personal is political -- Oct. 14, 2021 column

 By MARSHA MERCER

For months, progressives have hounded Supreme Court Justice Stephen Breyer to retire.

An online petition urges him to “put the country first” and retire now. A billboard truck has driven around the Supreme Court building, and two protesters interrupted a Smithsonian Associates’ program with Breyer Oct. 4 and unfurled a banner with the same message.

At 83, Breyer is the oldest and senior liberal justice, having served since 1994. The two other liberals, Sonia Sotomayor and Elena Kagan, are in their 60s. A younger liberal justice with a lifetime appointment could help shape the country’s direction for decades.

President Joe Biden’s window to nominate and the Senate to confirm a replacement could slam shut after the 2022 elections. If Democrats lose their razor-thin majority in the Senate, as seems likely, Mitch McConnell would become Senate majority leader again and have the power to bedevil Biden on nominations as he did President Barack Obama.

But justices often resist hanging up their robes and may regret doing so. Sandra Day O’Connor retired at 75 to care for her beloved husband with Alzheimer’s disease in 2006, but his condition deteriorated and soon he could not recognize her.

Retiring was “the biggest mistake, the dumbest thing I ever did,” O’Connor told Evan Thomas, her biographer.

Breyer deserves the respect -- and space -- to decide when he retires.

He knows his legacy is at stake. In an interview with The New York Times, he favorably recounted something the late Justice Antonin Scalia said: “He said, `I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.’”

No one ever knows what’s ahead, and Scalia died suddenly of natural causes at 79, on a hunting trip in Texas in February 2016.

About one hour after Scalia’s death was confirmed, McConnell, then majority leader, announced the Senate should not confirm a replacement in a presidential election year.

Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, a respected moderate many Republicans had supported. McConnell refused to allow a vote and later said blocking the nomination was his proudest moment. Biden named Garland attorney general.

When liberals nipped at Ruth Bader Ginsburg’s heels to retire at age 81, so Obama could nominate her successor, she dodged the issue by asking rhetorically in an interview with Reuters, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

Her death at 87 ended her tenure just two months before the 2020 presidential election. Biden’s predecessor and McConnell rushed confirmation of conservative Amy Coney Barrett, 48, through the Republican-controlled Senate.

Today’s conservative court -- six justices appointed by Republican presidents and three by Democrats – is teeing up cases that could undo years of settled law on abortion rights and other hot topics. Breyer, a Clinton appointee, wants to participate in these cases. He has work to do.

Justices often insist that the court’s judicial decisions are not political. Breyer makes that argument in his new book, “The Authority of the Court and the Peril of Politics.”

And yet the justices are well aware of the political ramifications of their personal decision to stay or go.

Then-Chief Justice William Rehnquist was once asked if it is “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”

The question came from Walter Dellinger, Duke University law professor, who wrote about it later in a 2017 article for Slate.

 “No, it’s not inappropriate,” Rehnquist replied. “Deciding when to step down from the court is not a judicial act.”

Asked recently about Rehnquist’s comment, Breyer said, “That’s true.”

Meanwhile, the political clock ticks louder. It’s still possible for Breyer to retire after this term and for Biden and Senate Democrats to install a liberal successor, likely a black woman, before the midterm elections.

But Breyer’s indecision has made the task more difficult, and he has ensured the highest court will be a key political issue in next year’s Senate races.

©2021 Marsha Mercer. All rights reserved.

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Women's equality -- yes, it's political -- Sept. 20, 2018 column

By MARSHA MERCER

Asked when there will be enough women on the Supreme Court, Justice Ruth Bader Ginsburg has a ready answer.

“When there are nine,” she says. “People are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”

Ginsburg’s provocative response came to mind during the debacle surrounding President Donald Trump’s selection of Brett Kavanaugh for the nation’s highest court. Trump could have nominated a woman.

After all, President Ronald Reagan nominated the first woman justice – Sandra Day O’Connor.

We’re nowhere near Ginsburg’s goal. Only three of the nine are women – Ginsburg, Sonia Sotomayor and Elena Kagan. 

Not that choosing a woman to replace Justice Anthony Kennedy would have guaranteed smooth sailing. It’s easy to imagine Trump choosing the wrong woman just as President George W. Bush did in 2005.

Bush crashed on the rocks of public opinion with his ill-conceived choice of White House counsel Harriet Miers to replace O’Connor. Miers, who had no judicial experience, was such an unsuitable pick she withdrew before her confirmation hearing.

Bush then chose federal appellate judge Samuel Alito, who is one of the most conservative justices.

Americans consistently tell pollsters they’d like to see more women leaders in both politics and business.

Majorities of Americans say having more women in top positions in government and business would improve the quality of life for everyone, for men and for women, according to the latest Pew Research Center survey released Thursday.

But there’s a gender gap. Seven in 10 women say there should be more women in high political office and in top business jobs, but only about half of men say so.

And – no surprise -- Democrats and Republicans see the state of women’s equality very differently. Nearly eight in 10 Democrats and Democratically-leaning independents say too few women hold high political office, but only one in three Republicans and Republican-leaners think so.

With the most women running for Congress ever, the looming question for the midterms is whether voters will make this truly a Year of the Woman.

The dismal approval rating of the Republican-controlled Congress – still bumping the bottom at 19 percent in the latest Gallup poll – suggests a desire for change.

Only 31 percent of Republicans approve of the way Congress handles its job, but that’s far higher than the 8 percent of Democrats who approve. Among independents, 17 percent approve of the job Congress is doing.

The current Congress has a record 112 women – 89 in the House and 23 in the Senate – but that’s only 21 percent of the total. Most the women are Democrats – 64 in the House and 17 in the Senate.

For a sense of how long it’s taken women to get this far, 52 women have ever served in the Senate and 23 are serving now.

Of the 53 women who filed to run for the U.S. Senate this year, 23 made it through their primaries and are still in the running. In the House, 239 of the 476 women who filed are still in the running, according to the Center for American Women and Politics at Rutgers University.

Several Democratic women in the House are forming Elect Democratic Women, a PAC inspired by the Congressional Black Caucus and Congressional Hispanic Caucus, that plans to raise money for female Democratic candidates.

“We really feel very strongly that better decisions will be made by government when it represents the diverse population it is supposed to represent,” Rep. Lois Frankel, D-Florida, chairwoman of the group, told Politico.

Winning for Women PAC, whose leaders include former Sen. Kelly Ayotte, R-New Hampshire, formed last year to endorse conservative candidates and serve as a counterweight to EMILY’s List, the powerful Democratic group that endorses abortion rights candidates.   

The competing PACs are emerging as women worry women candidates may be losing ground. Women are more doubtful now than they were four years ago that voters are ready to elect women, Pew found.

In 2014, about 41 percent of women thought the main reason women were underrepresented in high political offices was voters weren’t ready to elect women. Now, after Hillary Clinton’s 2016 loss, 57 percent of women say they think voters aren’t ready.  

We’ll know the night of Nov. 6.

©2018 Marsha Mercer. All rights reserved.

For the court: `someone smart' -- Feb. 18, 2016 column

By MARSHA MERCER

Nearly everybody has advice for President Barack Obama about the Supreme Court vacancy caused by the sudden death of Justice Antonin Scalia, even Scalia himself.

Scalia, although a Harvard Law grad, was a fierce critic of the Harvard-Yale axis on the court and the narrow range of background and experience of the justices whose opinions shape American life.

This court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Four are natives of New York City, eight grew up in east- and west-coast states, he wrote last June in a dissent in the same-sex marriage case.

“Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination,” said Scalia.

All the justices are either Jewish or Roman Catholic. Justice Clarence Thomas, a former Baptist who’s now a Catholic, joined Scalia, also Catholic, in the dissent.

Scalia’s astringent dissents – he was often in the minority – won him many fans in law schools, where he loved to lecture, debate and counsel students. Known for his wit and intellect, he was a popular professor at the University of Virginia from 1967 to 1974. 

He had hired six U. Va. law grads as his clerks in the last 10 years, helping build a path for a new generation to the highest court. A Supreme Court clerkship is often a stepping stone to becoming a federal judge and even a Supreme Court justice.

Obama says he will nominate someone with “an outstanding legal mind” to replace Scalia. The president likely will remember Scalia’s advice after Justice David Souter announced his retirement in 2009. 

   

“I hope he sends us someone smart,” Scalia told David Axelrod, then Obama’s senior adviser, at the White House Correspondents Dinner.

Surprised by Scalia’s overture, Axelrod replied that he was sure the president would do so, he recalled this week in a commentary he wrote for cnn.com. But Scalia persisted.

“`Let me put a finer point on it,’ the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. `I hope he sends us Elena Kagan,’” Axelrod wrote.

Axelrod was shocked that the court’s leading conservative would propose a liberal for the court. But Kagan and Scalia shared “intellectual rigor and a robust sense of humor,” Axelrod explained, “And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good honest fight.”

That time, Obama chose Sonia Sotomayor, the first Hispanic justice. The next year, though, when Justice John Paul Stevens retired, the president did choose Kagan.

To expand the court’s horizons this time, Obama may nominate someone whose name is unfamiliar to many Americans: Sri Srinivasan (SREE SREE-nee-vah-sun), a federal appeals court judge.

Srinivasan, 48, is known for his outstanding legal mind, his collegiality and his open-mindedness. He was born in India, emigrated to the United States as a young child and grew up in Kansas.

A graduate of Stanford University with three degrees, he clerked for 4^th U.S. Circuit Court of Appeals Judge J. Harvie Wilkinson III in Richmond, Va., and Supreme Court Justice Sandra Day O’Connor. Wilkinson, a Reagan appointee, has called him “lightning smart.”

The Senate unanimously confirmed Srinivasan to the D.C. Circuit in 2013. He won  kudos from Republicans and Democrats, although he drew liberal opposition for representing Exxon Mobil and Enron CEO Jeffrey Skilling.

As a law clerk in Richmond, Srinivasan and fellow law clerk Ted Cruz, became friends. Senator Cruz praised and voted to confirm Srinivasan in 2013 but said Wednesday that if Obama nominates him for the nation’s highest court, he will not vote for him.

Cruz wants the election to be a referendum on the court. That’s politics.

Srinivasan would be the first justice from South Asia, the first Hindu on the Supreme Court and the first justice born outside the United States since Felix Frankfurter served from 1939 to 1962.

Yes, Mister President, send “someone smart.”

©2016 Marsha Mercer. All rights reserved.

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Let the sun shine in Supreme Court -- Jan. 8, 2015 column

By MARSHA MERCER

The Supreme Court is poised this year to make momentous rulings – on the future of the Affordable Care Act, pregnant workers’ rights on the job and, probably, same-sex marriage.  

If you want to see the court in action, though, you’ll have to be present – just as when everybody wrote with a quill pen. Speaking of which, white quills are still set out on counsel tables every day the Supreme Court is in session – a nice touch for the lawyers arguing cases.

But citizens of the 21^st century shouldn’t have to journey to Washington to see justice.

After all, millions of Americans watch the Super Bowl without having to travel, Rep. Steve King, R-Iowa, said last month at a hearing of the House Judiciary subcommittee on courts. Most people watch the game on TV -- a technology that was cutting edge 60 years ago.

The hearing was on the proposed Sunshine in the Courtroom Act, a perennial, bipartisan effort to open the Supreme Court and lower federal courts to television cameras.

Republicans and Democrats in the House and Senate as well as C-SPAN and media and legal organizations have tried unsuccessfully for decades to persuade the Supreme Court to televise its proceedings.

C-SPAN, which began covering the House of Representatives in 1979 and the Senate in 1986, first made a request to cover oral arguments to Chief Justice William Rehnquist in 1988.

Chief Justice John G. Roberts Jr. dashed hopes that the court might relent in 2015 in his year-end report on the federal judiciary, released on New Year’s Eve. He didn’t mention cameras, but he did stress that the court shouldn’t embrace technology too quickly.

“The courts will often choose to be late to the harvest of American ingenuity,” he wrote. His goal is to make legal briefs and other filings available online “as soon as 2016.”

Roberts’ report prompted criticism from the incoming chairman of the Senate Judiciary Committee.

“The courts have yet to embrace the one technology that the founders likely would have advocated for – cameras in the courtroom,” Sen. Chuck Grassley, R-Iowa, a longtime proponent of televising court proceedings, said in a statement.

“The founders intended for trials to be held in front of all people who wished to attend. The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage, the same way CSPAN opened Congress to the public,” Grassley said.

Every state allows TV coverage of courts, and some federal courts do too. The Supreme Court releases written transcripts and audio recordings of oral arguments, sometimes the same day.  

Independent organizations, including SCOTUSblog, blog arguments and opinions live as they happen. The court allows sketch artists. But cameras? No way.   

Justice David Souter quipped in 1996 that cameras would roll into the courtroom over his dead body.  Souter has since retired. Justice Anthony Kennedy has said the court should not become part of the “national entertainment network.” Justice Clarence Thomas has said his colleagues on the court would lose their privacy.

Justices fear that the public wouldn’t understand the court’s arcane proceedings, that lawyers might grandstand and that soundbites would wind up out of context on the news and late-night TV. 

A lot of that already happens. Ordinary citizens, kept at arms’ length, have to rely on pundits who offer flamboyant interpretations. If people could see the action for themselves, they would get a more measured view.

Interestingly, nominees to the court often approve of cameras but as justices favor keeping the door shut. For example, Elena Kagan said in her confirmation hearing in 2010 that she thought cameras in the courtroom would be “terrific.”

“I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people,” she said.  A couple of years later, though, Justice Kagan had cooled to the idea, saying she had “a few worries” about cameras.

Even if Congress were to pass the Sunshine in the Courtroom Act, you still might not be able to watch the Supreme Court from your den.  The act authorizes the chief justice and judges in lower courts to allow cameras but it doesn’t require them to do so. The court could still say no.

For the foreseeable future, if you want to see the court, you’ll need to saddle up for the trip to Washington – and that’s unjust.    

© 2015 Marsha Mercer. All rights reserved.

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