Thursday, April 7, 2022

Part I

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Three Republican Senators Say They Will Vote to Confirm Judge Ketanji Brown Jackson to the Supreme Court: What Is Their Argument?

So much happening in the world today, but we start out on this edition of The Briefing at the Supreme Court of the United States, and with the fact that by the end of this week in all likelihood, Judge Ketanji Brown Jackson is going to be confirmed as the newest justice of the U.S. Supreme Court. Now the story behind this, very interesting. There is a 50/50 split in the United States senate between Republicans and Democrats. You can’t go forward with almost anything with a 50/50 split, but remember, the president of the senate gets to decide split votes, and the president of the senate is the vice president of the United States, and that means Democratic vice-president Kamala Harris.

And so even as you’re looking at this situation, let’s just remind ourselves as recently as just a few years ago, it took 60 votes to confirm a justice on the United States Supreme Court, because the filibuster rule was in place. But then in just a very short amount of time, the republicans regained the majority, and under Majority Leader Mitch McConnell, they moved to eliminate the filibuster for nominees to the United States Supreme Court, and that helps to explain why in four years President Donald Trump got to nominate three different justices on the Supreme Court, all three of them confirmed with the republican majority in the senate. Republicans have lost that majority, at least for now, and thus we are in a very different situation with a Democratic president of the United States making nominees to the court, and with the Democrats in the control of the leadership when it comes to the majority party.

But here’s where the situation just gets a lot more interesting, because in all the conversation about Judge Ketanji Brown Jackson, even though much of it is basically in the mainstream media just been for a public show, the fact is that we are down to some very interesting issues here, and the biggest issue is judicial philosophy, how a judge understands the judicial role and how the judge understands the right way, the legitimate way, of reading and applying the Constitution of the United States. But then we also have the issue of the senate’s responsibility. And the big headlines came early this week, with the announcement that one, then two, then three republican senators would vote for the confirmation of Judge Ketanji Brown Jackson when the vote comes up in the senate by the end of this week.

First to break was Senator Susan Collins, a republican of the state of Maine. Now, something to think about is the fact that when you’re looking at Senator Collins, you’re talking about someone who’s not only a long-term veteran of the senate, and by the way, someone who’s almost iconic in Maine. But you’re talking about someone who is a republican by party identification and by caucus, but not so much by political philosophy. And when it comes to many issues, Susan Collins is actually far to the left of the majority in the republican party. And just in 2020, she faced a very hard race for reelection to the senate. She won it, but she won it by playing up her supposedly moderate credentials there in the state of Maine.

But here’s where things get even more interesting, because even as Susan Collins was the first republican to announce that she would vote for Judge Jackson, what is most interesting to me, is the rationale that Senator Collins gave for that decision. In her statement indicating that she would vote to confirm Judge Jackson, Senator Collins made a very interesting and important, and I believe absolutely wrong statement. But nonetheless, this is what the senator said, “In my view, the role under the constitution assigned to the senate is to look at the credentials, experience, and qualifications of the nominee. It is not to assess whether a nominee reflects the individual ideology of a senator or would vote exactly as an individual senator would want.”

Huge problems with this. It is hard for me to believe actually that the senator’s staff let this statement through, but it’s on her website right now. Why? Well just consider one of the words that she used in the statement. She said that she doesn’t believe that the senate should make a decision about confirming a judicial nominee on the basis of whether or not that individual would vote exactly as an individual senator would want. Here’s the important issue: since when does anyone honestly speak of the role of a judge, much less a justice of the Supreme Court, merely as voting? Now clearly we speak of nine justices, we speak of the necessity of having a majority of justices. That means at least five when all nine justices are involved to decide a case. But reducing the role of the judiciary to a vote is to confuse the role of the legislature and the judiciary.

That’s the kind of elemental civics lesson, again, it’s hard for me to believe the senator’s staff let that through. But the bigger issue is not the vocabulary. The bigger issue is the argument. Because here’s Senator Collins, again, trying to explain why she’s voting for Judge Jackson. And by the way, during the time that Senator Collins has been in office, and remember all of that time she’s been a republican, the only presidential nominee to the high court she has voted against was Amy Coney Barrett, and she did so because she said she didn’t like the timing of how the confirmation process was going on. An interesting set of rules for Senator Collins.

But you’ll notice here, the big thing is that she says the role of the senate she says, under the constitution, is to look at the credentials, experience, and qualifications of the nominee. Well where would you find that in the United States Constitution? Well, you would find it only where the constitution says that the senate has the power of advice and consent when it comes to such nominations. There is no such language as Senator Collins claims here in this particular statement. There is no such restrictive language. There is no reason that a senator should or should not vote for the confirmation or against the confirmation of a judicial nominee because of any constraint in the constitution. I’m going to go on and say that this is a form of political dodge. It is simply a way of saying, “I want to go along with the consensus here,” and no doubt it will please many in Maine, which is not a solidly conservative state. But at the same time, she is merely inventing a definition that supposedly is in the constitution. She’s claiming the constitution as her authority, but there is no such language in the constitution.

I’ve already cited the argument by Henry Olsen that at this point, given the ideological polarization in the United States and in the judiciary, the fact is that there is no reason that democrats should ever vote for a nominee put forward by a republican or republicans ever vote to confirm a nominee coming from a democratic president if the republicans and the democrats actually believe what they say they believe about the crisis in constitutional interpretation, looking at two different ways of looking at the constitution that are simply miles apart. We are looking at a divide that isn’t getting smaller, but at a divide that is getting ever larger.

But more on that in just a moment. The other two senators on the republican side to join in saying they were going to vote to confirm Judge Jackson are Senators Lisa Murkowski of Alaska, she’s also in a fairly challenging reelection race there in Alaska, and then Utah Senator Mitt Romney, a very, very interesting case. Lisa Murkowski, pretty predictable here. She has played the political process pretty carefully over the course of the last several decades. People don’t remember, at least most people don’t remember that she was first an appointed senator. Now, who would’ve appointed her to the senate? Well, the governor. Who was the governor? Her father. Wasn’t that convenient? But Lisa Murkowski is if anything a political survivor. At one point, she lost the republican nomination and actually won the seat on a write-in vote, and the secretary of state in Alaska said that the ballots that would count for the write-in, if they were to be counted, had to spell Murkowski right. She won anyway.

Senator Murkowski, speaking of her support for Judge Jackson’s confirmation, said that she was giving support based upon the judge’s qualifications, “which no one questions,” her demonstrated judicial independence, her demeanor and temperament, and the important perspective she would bring to the court as a replacement for Justice Breyer. She then went on to talk about the judge’s experience, saying, “She will bring to the Supreme Court a range of experience from the courtroom that few can match given her background in litigation.” She then went on to say this, and this is probably key, “It also rests on my rejection of the corrosive politicization of the review process for Supreme Court nominees, which on both sides of the aisle is growing worse and more detached from reality by the year. While I have not and will not agree with all of Judge Jackson’s decisions and opinions, her approach to cases is carefully considered and is generally well reasoned.”

Now wait just a minute. Let’s look at that sentence for a moment, because here are the criterion supposedly. The judge hears cases with careful consideration, and that the approach is generally well reasoned. Well, you’ll notice that that could apply in many different directions. You could have an extremely conservative justice, about whom you could say that that justice brings forward jurisprudence that’s always carefully considered and generally well-reasoned. You could, on the basis just of logic and reasoning, say the very same thing about the most liberal justice on the court. But that simply is an attempt to dodge the big issue, which is every senator, all 100 senators, have 1% of the 100 votes, and they must take their full responsibility for deciding who will and will not sit on the Supreme Court of the United States. And that means what judicial philosophy will and will not operate at the Supreme Court of the United States.

The third republican senator to say that he would vote to confirm Judge Jackson is US Senator Mitt Romney, republican of Utah. Now remember, he is a former republican presidential nominee. That goes back to the 2012 election, he was eventually defeated as Barack Obama was running for reelection. But there’s a lot to remember here. As you say the name Romney, this brings up one of the very central names to republican politics going back to the 1960s in particular. Mitt Romney’s father George Romney was very well known as the Republican governor of the state of Michigan. He had political aspirations of his own, and as a matter of fact he was considered at least by some to be the front runner for the 1968 Republican presidential nomination until he visited Vietnam. Remember, the Vietnam War was going on, and while he was there he claimed that he had been brainwashed by Vietnamese propaganda. Now, here’s the problem. You really lose your moral credibility to run for the office of president if you tell people that you were brainwashed in Vietnam.

Mitt Romney emerged into republican politics not in the state of Utah, not in the state of Michigan, but in the state of Massachusetts. Now, just remind yourself, Massachusetts is one of the most liberal states out of the 50 states in the union, and yet Mitt Romney was elected governor of Massachusetts as a moderate or a centrist Republican. Now arguably that’s the only kind of Republican who might actually have a winning ticket in a statewide election in Massachusetts. But there was nonetheless a political transformation between Governor Mitt Romney of Massachusetts and the nominee Mitt Romney, as the Republican nominee for President of the United States. And there have been other political transformations, but it seemed like something like a crowning of a crown prince when Mitt Romney, very well-known as a Mormon, was elected to the United States Senate from the state of Utah.

But since he has been serving in the senate, Mitt Romney has been a predictably unpredictable vote on any number of issues. He is not a solidly red Republican, that is sure, even though the fact that he and his father were both governors of different states, and both Republican governors, establishes a certain kind of Republican aristocracy. The fact is that that aristocracy may now be political light years from the republican base, which is far more conservative. Mitt Romney said that he would be voting for the confirmation of Judge Jackson. He said that this was based upon her record in testimony. He said, “I have concluded that she is a well-qualified jurist and a person of honor. While I do not expect to agree with every decision she may make on the court, I believe that she more than meets the standard of excellence and integrity. I congratulate Judge Jackson on her expected confirmation and look forward to her continued service to our nation.”

Now what’s the problem with that? Well, even historians of the high court have noticed something that’s anomalous when it comes to Mitt Romney’s statement that he would vote for Judge Jackson as a nominee to the Supreme Court. What is the anomaly? Well, the anomaly is that he just fairly recently voted on whether or not Judge Jackson should sit on a lower court, which would be the U.S. Federal Court of Appeals, and he voted against her nomination. So here’s what’s strange. Strange is just one way to put it. What is strange is that now you have Senator Romney saying he’s going to vote for a judicial nominee for a higher position of responsibility when he had voted against that judge just a matter of a very short time ago for a lesser position. Go figure that out.

Part II

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Judicial Philosophy and the Future of Supreme Court: The Big Issue in the Confirmation Hearings of Judge Ketanji Brown Jackson

But before leaving the story, I want us to look at one particular dimension, and that is the fact that in her confirmation hearings, Judge Jackson said over and over again emphatically that she does not have a judicial philosophy. And I just wanted to state that that is, in one way or another, an evasive or dishonest answer. Because the fact is every judge does have a judicial philosophy, otherwise the judge couldn’t judge. And as you’re looking at particular judges on particular cases, there have been judges who have said, “Look, I just take every case on its merits. There is not continuity between the way I look at case A, and B, and C.” But we as Christians understand the human mind just doesn’t work that way. Judges certainly do not work that way.

Now, if you’re looking for a judicial label to put on Judge Jackson, it might have to be something like just pragmatic. That is to say, try to make a decision based upon the evidence in the case, and try to do something that will make it work out. But as you’re looking at the actual record of Judge Ketanji Brown Jackson, that really doesn’t hold water. Scott Douglas Gerber, a law professor, he teaches at Ohio Northern University, is also an associated scholar at Brown University’s political theory project. He wrote about the fact that it’s actually impossible for a judge not to operate under a judicial philosophy. The problem is, Judge Jackson just was unwilling to tell us what her philosophy is. He goes on to say that her testimony was problematic, “Judicial philosophy is the way a judge understands and interprets the law. Different theories of interpretation sometimes lead to different answers about the meaning of the constitution, which is why it is important to know what a Supreme Court nominee’s judicial philosophy is.”

He then says this, “All judges, including supreme court justices, are required to interpret three categories of law: the constitution, statutes, and case precedents. A judicial philosophy is necessary in every category.” That’s absolutely right. There is no one who operates without a judicial philosophy. There is no judge who could operate without a judicial philosophy. Judge Jackson was actually just refusing to answer questions about what her judicial philosophy is, and that means that it now has to be inferred by the evidence rather than disclosed by the nominee.

Professor Gerber is absolutely right when he tells us, “Even an impartial judge must interpret the law before he or she can apply the facts of the case to the law, and this requires a judicial philosophy about legal interpretation.” He goes on to say, “A judicial philosophy is also necessary for interpreting statutes. Not surprisingly, there are different theories of statutory interpretation.” He concluded his article by saying this, “Jackson came across during her confirmation hearing as a bright and well credentialed judge, and as a nice person. But a Supreme Court justice needs a judicial philosophy. Jackson should tell the American people what hers is.”

Now given the fact that these hearings, the confirmation hearings for a potential justice to the Supreme Court, are such a public event these days, they’re so highly scripted, that this was a deliberate decision on the part of Judge Jackson not to reveal her underlying judicial philosophy, and that is a fact that I think should be of concern to the American people. But of even greater concern is what her judicial philosophy actually is. And given the fact that she was highly supported by those who are enthusiastic about an extremely liberal interpretation of the constitution, and since she was appointed by a president who made very clear the kind of judges that he would appoint to the nation’s highest court and to the federal bench, we can only assume that the president knew what he was doing when he nominated Judge Jackson, and what he is doing is trying to shift the court to the left.

And that means we have to assume that her private conversations with people in the White House were probably much more candid and open than her conversation before the United States Senate’s Committee on the Judiciary. We’ll be watching events in the senate with you, but in all likelihood Judge Jackson is going to be confirmed by a largely party line vote by democrats in the senate, joined by three republicans. We’ll be watching that story with you very closely.

Part III

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A Tale of Two States: Colorado and Oklahoma Pass Polar Opposite Abortion Laws and Reveal the Nation’s Divide on the Issue

But then we turn specifically to the issue of abortion, and we’re going to be looking at a tale of two states. These are two states that at least for a narrow border actually touch one another, the states are Colorado and Oklahoma, and the big story is that they now represent polar extremes on the abortion in one country, in the United States, in one region, and actually touching one another when it comes to that short border. We’re looking at the states of Colorado and Oklahoma, and we are looking at seismic developments in the morality and legality of abortion in the United States, and all of this with the anticipation that by the end of this term, the Supreme Court will be ruling in a case, a case coming from Mississippi, that could well lead to a reversal of the Roe v. Wade decision legalizing abortion in 1973.

So what’s going on in Colorado, what’s going on in Oklahoma? Well, the opposite. In Colorado, the state has passed an extremely liberal abortion bill. As a matter of fact, this bill in Colorado now signed into law by Governor Jared Polis, actually established abortion as a “fundamental right” in the state of Colorado. Now, that is very crucial legal importance. The use of the term fundamental right, because when you speak about rights that are fundamental, you mean rights upon which other rights are predicated. That is to say, you look at something like the stacking of stones into a wall, a fundamental stone would be one that’s at the bottom of the wall. You take that stone out, other stones fall. It is a right upon which other rights supposedly are derived, and upon which those other rights depend.

And as you consider this, just understand that no one can make a sane argument that abortion was even in the imagination of those who framed the U.S. Constitution. No one can say with a straight face that the word abortion is or was ever intended to be in any word of any paragraph in the United States Constitution or in any of its amendments in over 200 years of constitutional history. No, it was an invented right. Now it is claimed to be a fundamental right, and now you’re looking at the state of Colorado taking one extreme, and basically in the state of Colorado, a woman has a right to an abortion all the way up until the moment of birth. The law doesn’t say that explicitly, but that is nonetheless what will be the result of this new law that will take effect in just a matter of weeks in the state of Colorado.

The state of Oklahoma borders it. In the state of Oklahoma, the legislature has just passed a bill that is the polar opposite, a bill that would outlaw almost every abortion within the state of Oklahoma, and would actually criminalize the medical practice of performing an abortion except on the extremely limited basis of cases in which the life of a mother is actually in danger. So in the pledge of allegiance, we speak of ourselves as one nation under God, and we are until we’re not. And when you’re looking at an issue with abortion, and you just look. You’re not talking after all about Oklahoma and Massachusetts. Yes, that would be a contrast. You’re not talking about the state of Mississippi vs. California. Yes, that would be a contrast. But you’re talking about vast distance between those states. Now you’re talking about Colorado and Oklahoma, and they share a border.

Part IV

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‘For Every Action, There is an Equal and Opposite Reaction’: Newton’s Third Law or the Growing Divide of Politics in the U.S.?

Now, we’ve been tracing the fact that this development is now showing itself all over the country and on issue after issue. It’s very interesting that the New York Times on its front page on Monday of this week ran an article with the headline, “New Laws Reveal Wide Chasm as States Veer to Left or Right.” The subhead, “Divided Over Abortion, Gender, and Voting.” Shawn Hubler and Jill Cowan are the reporters on this story. Here’s the big thing. This really is a new development in terms of modern America, it really is. We are now looking at the fact we have red states, we have blue states. And the red states are actually getting redder for the most part, and the blue states are getting bluer. Now one of the things we need to note is we have something going on here in politics as in physics, in Isaac Newton’s third law. For every action, there is an equal and opposite reaction. That explains why a rocket can take off from earth, it explains so much in the physical world.

It also increasingly explains politics, because as you’re looking at say red and blue, you’re looking at liberal and conservative, you have states that are actually becoming deeper blue, states that are becoming deeper red, because the logic of those positions are being argued on a national landscape in which the arguments are actually becoming clearer and clearer. The options in the middle are actually becoming fewer and fewer. The team of reporters for the New York Times puts it this way, “As Republican activists aggressively pursue conservative social policies in state legislatures across the country, liberal states are taking defensive actions spurred by a U.S. Supreme Court that is expecting soon to upend an array of longstanding rights, including the constitutional right to abortion. Left-leaning lawmakers from Washington to Vermont have begun to expand access to abortion, bolster voting rights, and denounce laws in conservative states targeting LGBTQ minorities.”

Now what you need to note there is the editorialization going on in the way that paragraph is written. This isn’t by accident on the front page of the New York Times, which isn’t by accident liberal, even the liberal gold standard in some ways in the mainstream media. And so what you have here is that the liberal establishment is defined as normal, and a conservative reaction to it is defined as abnormal, and of course here, a revolt against progress. So you’ll notice that what is described here is an array of longstanding rights, but let’s just remember, when was supposedly a right to abortion found in the constitution? 1973. The United States celebrated its bicentennial just three years later, its 200th anniversary just three years later in 1976. So let’s just say it took 197 years supposedly for anyone to find that within the constitutional history of the United States of America.

The article cites John Michaels, a law professor at UCLA, who said, “We’re further and further polarizing and fragmenting so that blue states and red states are becoming no only a little different but radically different.” But the article in the Times gets to something that is a very accurate observation, and that is that at the state level, the fact is that you’re basically going to have one of these positions, one of these worldviews, that is going to have supremacy. And eventually, that particular side of the argument is going to be able to pass a lot of legislation. And that legislation will be, at least in part, reactive to federal realities and to developments in other states. And that means that as we look to the future, the red states will grow redder simply by force of logic as the blue states grow bluer.

The other thing to note is that we are right now looking at the most basic questions about interpreting the constitution. And by the way, the Supreme Court comes right into the center of this picture, which takes us back to where we began today on the briefing, with the confirmation process for Judge Ketanji Brown Jackson to succeed Justice Stephen Breyer on the Supreme Court of the United States. We are not just talking about theory, we’re talking about the consequences of ideas. We’re also talking about the consequences of elections, most importantly the election of a president of the United States.

Speaking of the differences between these two states, it is interesting that one of the photographs that is included with this article is of a child kissing a mother, and we’re told that these two are named Violet and Isa, and Violet is here pictured with her “transgender daughter.” That’s how it’s put. And yet the child here is only a kindergartner, has to be something like five years old, and is supposedly a transgender child. And of course at this point, as some people want to say, that actually says probably more about the parent than about the child. But what it also says is that all of these issues are now a part of the jurisprudence of the role of the judiciary in the United States of America.

That should frighten us all. But it also just increases the importance of knowing who will sit on every seat on the U.S. Supreme Court, because this is not just about the future of the court. This is about the future of the nation. And not just that. It’s about the future, or whether there is a future for our civilization.