It's time for a Black woman Supreme Court justice -- Jan. 27, 2022 column

By MARSHA MERCER

When I wrote last October about liberal activists’ campaign urging Justice Stephen Breyer to retire, I mentioned President Joe Biden likely would nominate the nation’s first Black woman justice.

Some readers criticized the idea of making race and gender a factor.

A reader in Henrico, Va., wrote me: “Will people ever truly understand that it is better and more important to appoint the best possible justice, irrespective of race and sex?”

His question is a familiar one, but it implies “the best possible justice” can’t possibly be both Black and a woman. Even if unintentional, the implication is wrong.

Judges and justices who bring diverse experiences of more parts of society have a wider perspective that can enhance their fair and independent decisions. Their presence on the bench also helps inspire public confidence in the judiciary.

Ronald Reagan proved the wisdom of judicial diversity when he made a presidential campaign promise in 1980 to name the first woman justice to the Supreme Court. He nominated Sandra Day O’Connor the following year and she served for a quarter century before retiring.

Biden has made a concerted effort to name more women and people of color to the federal bench, and the Senate has confirmed 40 of his district and circuit court picks. That’s more than have been confirmed in a president’s first year since Reagan, the White House says. Among those confirmed last year, 80% are women and 53% are people of color.

In contrast, 85% of former President Donald Trump’s judicial nominees were white and 76% were men, according to the Alliance for Justice, a progressive advocacy association.  

With Breyer’s retirement, Biden is poised to make history while, like Reagan, delivering on a campaign pledge.

“I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,” candidate Biden said at a debate days before the South Carolina Democratic primary in February 2020.

Breyer’s retirement comes as Democrats need to revive their base of support before the midterm elections.  Even if Biden hadn’t promised to nominate a Black woman justice, he probably would. It’s not only popular politically but the right thing to do.

It’s time a Black woman joined the nation’s highest court.

She will be only the third Black justice in history and the second, with Clarence Thomas, on the current court, and the fourth sitting woman justice, with Sonia Sotomayor, Elena Kagan and Amy Coney Barrett. 

Critics say Breyer, a pragmatic liberal, likely will be replaced by a liberal activist. Even if that is so, the liberal wing of the court will remain a three-justice minority. The six-justice conservative majority, including the three justices Trump nominated, will stand.

Senate Majority Leader Chuck Schumer promises a speedy confirmation process, and the Senate can move fast. Then-Majority Leader Mitch McConnell rushed Trump-nominated Barrett through last fall in one month.

The 50-50 Senate can confirm Biden’s nominee if all 50 Democratic senators stick together and are present that day, and Vice President Kamala Harris casts the tie-breaking vote.

It’s a stretch to think any Republicans will vote for Biden’s nominee – though three Republicans did vote last year to confirm Judge Ketanji Brown Jackson to the U.S. Court of Appeals for the District of Columbia. They were Sen. Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska.

Jackson is on the likely shortlist of candidates for the high court. She also had bipartisan support when she was nominated for the federal district court in 2012. None other than Rep. Paul Ryan, Republican of Wisconsin, introduced her, saying:

“Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity is unequivocal. She’s an amazing person, and I favorably recommend her consideration.”

Ryan, who later became House speaker before retiring in 2018, is related by marriage to the judge.

Also on the shortlist: California Supreme Court Justice Leondra Kruger and federal District Court Judge J. Michelle Childs of South Carolina.

Any of them would make an honorable and qualified addition to the Supreme Court.

©2022 Marsha Mercer. All rights reserved.

Trump, GOP will own shutdown, if it happens -- April 20, 2017 column

By MARSHA MERCER

President Donald Trump took credit for a Democrat’s failure to win a special election outright in Georgia’s 6^th Congressional District, forcing a run-off in June. 

“Glad to be of help!” he tweeted Tuesday night.

But if you want a true gauge of presidential clout, watch Congress as it wrestles with the prospect of yet another government shutdown. 

Americans have learned not to count on Congress to do much, but keeping the government open is a modest expectation. That goal, however, challenges Trump’s and congressional spending priorities.

Democrats have said no to Trump’s $1.4 billion request to build a border wall. They’re also fighting his proposed $18 billion in cuts to domestic programs to offset huge increases in defense spending.

Conservative Republicans still want to cut funding to Planned Parenthood, but saving it is a Democratic priority.

All this matters because Republicans likely will have to work with Democrats to avoid another government shutdown. Trump should help make a deal, but, as we know, he’s unpredictable.  

We’re here because Congress was unable to get its act together last December and passed a continuing resolution or temporary spending measure to avert a government shutdown. That spending authority expires Friday, the day before Trump’s 100^th day in office, which he’d rather spend talking up his accomplishments than explaining why national parks are closed.

Congress went on a two-week spring break without dealing with the spending issue. The Senate returns to Washington Monday and the House on Tuesday, leaving a few days to negotiate. 

The last government shutdown, in October 2013, dragged on for 16 full days, and the one before that lasted 21 full days before it ended in January 1996. Each cost taxpayers billions of dollars and caused major disruptions in services.

“There’s not going to be a shutdown,” Senate Majority Whip John Cornyn, R-Texas, assured reporters the other day. These are the same people who promised to repeal and replace the Affordable Care Act on Day One.

Congress could punt again and pass another temporary extension for a week, pushing the crisis into May, Politico reported.

Meanwhile, Republicans and Democrats are preemptively blaming each other.      

“Our Republican colleagues know that since they control the House, the Senate, and the White House that a shutdown would fall on their shoulders, and they don’t want it,” said Senate Minority Leader Charles Schumer, D-New York.

Republicans need eight Democratic votes to overcome a Senate filibuster, so Democrats are trying to use their leverage to stop Trump’s agenda.

“I think Chuck Schumer and the Democrats want a shutdown,” Sen. Ted Cruz, R-Texas and architect of the last shutdown, told constituents in Texas the other day, the Texas Tribune reported.

This is rich coming from Cruz, who kept the Senate floor for 21 hours in 2013 in a vain attempt to kill the Affordable Care Act, a stunt that led to a budget standoff and then to the last shutdown.

Cruz’s antics demonstrated a truth about budget brinksmanship and government shutdowns: They don’t work. An omnibus spending bill passed, the ACA still stands, and Congress’ approval rating is a dismal 20 percent.

The cost of paying furloughed federal workers for not working during the 2013 shutdown was $2 billion, according to the Office of Management and Budget, which also cited such additional indirect costs as uncollected fees, halted IRS enforcement measures and additional interest on payments that were late, due to the shutdown.

No matter how they spin it, Republicans would suffer political fallout of a shutdown. The stars haven’t misaligned to bring on a funding gap under single-party rule since the troubled presidency of Jimmy Carter.

Even if Congress manages to keep the government open this time, another crisis looms in the fall, when the debt ceiling is reached.

The potential shutdown is a test. Trump could demonstrate he cares more about governing than electioneering and support a compromise. Congressional Republicans could show they have more aptitude for governing than squabbling.

It shouldn’t be a big ask to keep the government’s lights on.

©2017 Marsha Mercer. All rights reserved.