Wednesday, February 1, 2023

Part I

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‘The Ideology of the Judges Makes All the Difference': Why It Matters Who’s Sitting on the Courts

You remember this from civics class early in your educational experience, our constitutional system of government relies upon the separation of powers. That’s rooted, of course, in a Christian understanding of the danger of centralizing too much power in one place, or even in one function or branch of government. So our constitutional system has an executive branch, which is headed by the president, the legislative branch with both the House of Representatives and the Senate, and then the judicial branch.

Now at the very top in the federal system of the judicial branch is the Supreme Court of the United States. By the way, the chief justice of that court is not just the Chief Justice of the Supreme Court. That officer, according to the Constitution, is actually the Chief Justice of the United States of America.

But the courts are supposed to be the least political of all the branches. That is, at least, the theory. It was the theory behind the formation and the construction of the American Constitution. It has been a hallowed theme of American politics and civics going all the way back to the founding. The idea here is that even as the legislative and the executive branches are heavily buffeted by politics, the judicial branch is supposed to be, if not unbuffeted, then at least less so, more protected.

Federal judges in general, and specifically the Supreme Court justices, they do not run for office. It is not an elected office they hold. It is an appointed office with the President of the United States making the nominations and the United States Senate confirming those nominations. At that point, there is no election. There is no further democratic process necessary for a judge or a Supreme Court justice to remain in that role.

Now the situation is different in the majority of the states, but at this point, here’s what we need to look at. If you’re looking at affecting change in the United States and in particular, if you look at the history of the progressive left in the United States in the last half of the 20th century and into the 21st, there has been a concerted effort to use the federal courts as engines of that progressive change.

Now, that approach has been stunningly successful because this means that those with certain political ambitions have been able to accomplish their purposes through the courts when they would not have been able to do the same through the legislature. Just take the issue of abortion or, for that matter, same-sex marriage. When you look at those two issues, it was clear when you go back to the courts dealing with those issues that the legislators wouldn’t touch it. Even most presidents would not touch it.

Even when you had a president such as Barack Obama, who flipped on the issue and said that he was now same-sex marriage after he was against it, but he was actually against it after he was for it, that’s another story. But nonetheless, even when President Obama and then Vice President Joe Biden came out for it in 2012, they were in a very safe position because there was no danger such legislation was ever going to arrive at the Oval Office for signature. That was a very politically-safe move in order to gain votes from the left.

Now, the politicization of the courts is something that conservatives have been complaining about for a long time. But it’s really interesting to note that now you have liberals complaining about the politicization of the court as well, and you just have to look at some basic facts here and the facts come down to this. If you just take the Supreme Court of the United States and those seven justices, you can pretty much predict where a justice is going to come out on most of these giant controversial issues by the party of the president who nominated the justice.

Now, you say it’s, in theory, not supposed to be that way. The court is not supposed to be so political. But on big issues it is incredibly political, and it is even more true of many of the lower federal courts than is true of the justices of the United States Supreme Court.

But I think it’s easy to understand why we have arrived at this moment. The issues are now so stark. The divide is so deep that you really are looking at two rival ways of looking at the constitution, two very different ways of looking at morality and the function of government on so many of these ultimate issues and if the Supreme Court deals with these issues, they’re always big issues. If the Supreme Court deals with such an issue on most of these contentious issues, the way the court turns out is pretty much predictable and that just goes back to the importance of presidential elections and both the left and the right, both Democrats and Republicans understand that now.

But you know on both the right and the left, but particularly among conservatives, there’s just not that much attention to the lower federal courts. But then if you look at the total number of cases that arrive at the federal courts, only the tiniest percentage of those cases are ever heard by the Supreme Court of the United States. Most of those cases are dealt with at the lower court level, which are the district courts or in the federal courts of appeal. But at that point, they are just basically not going any further.

To be honest, Americans most of the time are far more interested in the legislative and even more so in the executive branch than they are in the judicial branch. For the judicial branch, for the courts to get this much attention, it has to be a massive issue of cultural and moral importance, such as abortion and the Dobbs decision reversing Roe v. Wade. There were people who were both pleased by the decision and outraged by the decision. What united them was it was one of the first decisions they’d ever talked about anyway.

But again, I just invite you to think in the main of these three different levels of the federal courts, the district court level, and then the circuit courts of appeal, and then the Supreme Court of the United States. Now most of the issues, just think about a funnel, most of them are dealt with at the district court level. Only on appeal, and that means at least a successful appeal with the appeals court hearing the case, does the case go from the district court up to one of the circuits, up to one of the courts of appeal.

But here’s where we need to note, that an awful lot of our constitutional law comes precisely at that level. Most conservatives in the United States just don’t understand that the appellate courts and, in particular, the circuit courts of appeal, they have an inordinate influence on jurisprudence and thus on law in the United States of America.

Now, those circuits are numbered and every one of them accumulates states, except for the most important and influential of those courts of appeal, which is for the District of Columbia. That is the Supreme Court Justice making court and it is located there in D.C., no accident. That’s where our federal government is seated.

But the other circuits are just that, they’re circuits of a particular gathering of states, and it actually did come down to the fact that those circuits originated with Supreme Court justices on horseback going from one place to another. It was a circuit. Much like the circuit-riding preachers of early Methodism in the United States, you had circuit-riding judges. So we still call them circuits, although I dare say, you’re probably not going to see any of those judges arriving on horseback or by carriage.

But of all of those circuits, the most infamous when it comes to American conservatives is the Ninth Circuit, the Ninth Circuit Court of Appeals of the United States of America. All you have to do is consider where those states are in that circuit, nine states that encompass just about the entirety of the American West.

Now if you say the West, you’re, of course, thinking of all kinds of things. But what you need to keep in mind is the concentration of population along the West Coast in some of the most socially and politically liberal terrain in all of North America, California, Oregon and Washington.

Now, the Ninth Circuit has been one of the most liberal American courts for a very long time. Ronald Reagan, when he was governor of California during the 1960s, was vexed by the Ninth Circuit and conservatives in the United States have been vexed by that circuit on an ongoing manner.

But here’s something interesting. The Ninth Circuit has been a bit less liberal in recent years precisely because of President Donald Trump. Influenced by the Federalist Society and also by a generation of conservative law professors, the president appointed a good number of conservatives to that court. Now, how many judges are on this circuit? The magic number is 29. Of the current 29 active judges in the Ninth Circuit, 16 were appointed by Democratic presidents, and 13 were appointed by Republican presidents.

Now here’s where you also need to understand how the math works justice at the Supreme Court of the United States. Just look at it this way. If a conservative president has the opportunity to replace a conservative justice or a judge, then it’s really important that the conservative president appoint and nominate a conservative jurist.

Now, the same thing is true if you’re a liberal and you want a liberal president to appoint a liberal jurist. But the point is the math only changes if you have a conservative seat filled by a liberal president or a liberal seat filled by a conservative president. When a seat flips, then and only then does the math change.

Now, if you want to get under the skin of those who are far more liberal in this country, just understand you can mention two names. One of them is Ruth Bader Ginsburg. Now, Ruth Bader Ginsburg, of course, was one of the champions of the left in the United States. She was a liberal icon, so why would liberals be mad at her? It is because, even as she had combated several diseases and she did so very bravely, the fact is that she stayed on the court, rather than to resign and retire when a Democratic president could have replaced her with someone like her.

In the Ninth Circuit, well, the name the Democrats think of in the same way is Stephen Reinhardt. Reinhardt was on the Ninth Circuit as its liberal leader for 38 years. That’s a very long time on any court, and Reinhardt earned the distinction of being called the “Liberal Lion of the Ninth Circuit.” But he did not retire when a Democratic president would’ve replaced him. Instead, he died during the Trump term and President Donald Trump appointed his successor and guess what? His successor was not a liberal lion.

Now, one of the points I want to make is that the interpretation of the law and, more particularly, the interpretation of the Constitution isn’t done by machines. It is done by human beings, and here’s where we need to understand that you have two rival visions of how to interpret the law and the constitution.

The progressivist understanding says, “Look, you have to adapt those words and that text to modern times, and thus, you have to understand the law as continually unfolding, and you have to find an inner logic in the law that enables you sometimes to jump right over the text of the constitution or a federal law in order to say, ‘Here’s where there is a right. It’s not there in the words, but a right to an abortion or a right to same-sex marriage. Trust me, it’s there.'”

In response to that more progressivist understanding of a so-called living constitution, a theory of reading the constitution by conservatives emerged in the 1960s and ’70s. But particularly, it gained acceleration in the ’80s and ’90s, known as originalism or textualism saying that, “Look, the authority is in the text, the authority is in the words, the authority is in the original intention of the ones who framed the law or framed the constitution.”

Now as you’re looking at that, you recognize this really does come down to making the words conservative and liberal make a lot of sense. So if you see a text as always unfolding in the direction of ever-increasing liberty defined by your understanding, well, there you have a more liberal understanding of the constitution. If you believe that the constitutional text is there authoritatively as a text to conserve the meaning that was intended in the beginning, well, then you are a conservative. You’re looking at the text in a conservative way.

The Ninth Circuit has been aggressively liberal, but now even as Democratic appointees still have a numerical advantage over Conservative appointees, the fact is that during the Trump years, you had some seats that flipped and that was to the great frustration of the left. Even as President Joe Biden has had the opportunity to make appointments to the Ninth Circuit, he is basically replacing Democratic appointees with Democratic appointees.

Does that last? We don’t know. But what we do know is that progressive lawyers and law professors, they’re watching very closely because they desperately hope for some flipped seats in the Ninth Circuit, just as they hope eventually for flipped seats at the Supreme Court.

But the other thing we need to look at here is just the honest acknowledgement that it matters who’s sitting on the court. These are not computers, they are not machines, they’re not automatons, and they are indeed a lot more political than many people would like to accept.

One of the people who understands this is not a conservative. He is decidedly not a conservative. This would be Erwin Chemerinsky, longtime constitutional law scholar and currently dean at the Law School of the University of California at Berkeley. Let’s just say you’re not going to find a conservative in that seat.

Chemerinsky is not only a legal scholar, he is also a practicing lawyer, and he said this, “We all know that there are many cases when the ideology of the judges makes all the difference.” He says, “As a lawyer, the first thing I want to know, as soon as I can find out, is who is on my panel?” meaning what panel usually of three judges of the circuit is going to be seated to hear his case? Because, as he says, once he has the names, he has a pretty good idea of where he stands.

But even the Los Angeles Times, that is a liberal paper in a liberal state and basically like this court, liberal, it published a report this stated this, “Among the nation’s appellate courts, the Ninth Circuit has become known as a particularly partisan battleground in recent decades, in part because its judges leaned so far to the left.” Now, if the Los Angeles Times is acknowledging that the court leans to the left, I’m just going to suggest you can trust him on that.

Chemerinsky, by the way, said even about the Biden appointees speaking of the President, he said, “He has not shifted the ideological composition of the court,” which reporter Kevin Rector of the Los Angeles Times rightly says, is “the traditionally liberal California-based court.”

Now, once again, I want to underline the fact that even if you’re not living in the jurisdiction of the Ninth Circuit, this court has inordinate influence over law nationwide, and that’s a reason why we need to pay attention to this. It’s just a good lesson for us today to remember that not only are the courts far more influential and powerful than most Americans think, there are courts and there are courts.

A lot of people immediately go to the Supreme Court of the United States, and that is, of course, the ultimate court of appeal of the United States of America. But we have underlined the importance of the D.C. Circuit, and now we underline the importance of the Ninth Circuit, and both of these circuits just remind us of the consequences of elections and the importance of electing a president who will make the kind of nominations that you believe should represent the judges who sit on these courts.

Part II

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The Most Important Election of 2023?: Why Wisconsin’s Supreme Court Election is on the Forefront of the Political Battlegrounds

But next that takes us to another situation where the future of a court is at stake, but in this case is not a federal court, not the Supreme Court, not a circuit court at the federal level. It is the Supreme Court of the State of Wisconsin because in a matter of weeks, the future of that State’s Supreme Court is going to be determined and that outcome is going to tell us a very great deal.

As Reid J. Epstein of the New York Times tells us, “In 10 weeks, Wisconsin will hold an election that carries bigger policy stakes than any other contest,” he means political contest, electoral contest, “in America in 2023.” Now, that’s quite a statement. This is the most consequential election to take place in 2023 in America? That’s actually the claim.

Now, there are several states that will be electing governors in 2023, but if you look at the entire electoral landscape, it’s hard to argue with the assessment the New York Times has made here. The future of the Wisconsin Supreme Court is going to tell us a very great deal, not only about the future of that court and not only about the future of Wisconsin, but about the future of our nation. So maybe we better pay a little bit of attention here.

As the New York Times explains, “The April race for a seat on the state’s evenly-divided Supreme Court will determine the fate of abortion rights, gerrymandered legislative maps and the Wisconsin governor’s appointment powers and perhaps even influence the state’s 2024 presidential election.”

Just to explain the context, we are told, “The court’s importance stems from Wisconsin’s deadlocked state government. Since 2019, Governor Tony Evers, a Democrat, has faced off against a Republican-controlled legislature with near-super majority control, thanks to one of the country’s most aggressive partisan gerrymanders, itself approved last year by the Wisconsin justices.”

So the bottom line in this is that the Wisconsin Supreme Court has had a very bare conservative majority, but one of the conservative judges is retiring. That means that if a more liberal judge is elected to the Wisconsin Supreme Court, you’re going to see the court flip. On the other hand, if conservatives win, you’re going to see a conservative majority on the court perpetuated. And it turns out so much is now at stake in this one decision over this one seat on Wisconsin Supreme Court.

But wait just a minute, you say. You’re talking about an election here. When you’re talking about justices of the U.S. Supreme Court, you’re not talking about the justices running for election. But actually in a large number of our states, judges in general and even judges on the Supreme Court are elected. They are not appointed.

But here’s the reality. Now, under today’s highly contentious and very divided political circumstance, when you have judges or those who would be judges running for office, they increasingly have dropped any pretense of being apolitical, and that is certainly what’s playing out right now in Wisconsin.

For example, a liberal county judge, and that’s the designation in the media, Janet Protasiewicz, who is a county judge from Milwaukee suburb, she is, according to the Times, “leading the charge on both fundraising and the new approach to judicial campaigning, shedding the pretense that she does not hold firm positions on the hottest button issues.” The paper says, “She turned heads this month at a candidate forum when she declared the state’s gerrymandered legislative maps rigged.”

The paper continues, “In an interview last week, Judge Protasiewicz argued that abortion should be a woman’s right to choose, and that Governor Scott Walker’s 2011 law effectively ending collective bargaining rights for most public employees was unconstitutional and predicted that if she won, the court would take up a case seeking to invalidate the Republican-drawn state and legislative and congressional maps put in place last year.”

The paper’s report also tells us that both of the major liberal candidates have offered what is described as “full-throated support for the right to an abortion.”

That just tells us a great deal. It tells us that not only are we in new terrain after the Dobbs decision and the reversal of Roe, this just tells us that the pretense about the courts being apolitical is increasingly seen to be just that, pretense. When you have candidates running for office who say, “If you elect me, this is how I am going to judge on these issues,” and when they are contentious issues related to congressional districting and political lines and abortion and, well, you go down the list, well, we have entered new terrain in the United States.

And it’s at least good and honest that we know that.

Part III

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The Transmogrifier: No, Not Calvin and Hobbes — The Changing Cultural Landscape

As we have to close our consideration of these things today, I want to go back to a line from the Times report just because it’s interesting. I read, “Their declaration signify how the race is transmogrifying into a statewide election just like any other in Wisconsin, a perpetual political battleground.”

Transmogrify, the race is transmogrifying. Where does that word come from? Well, actually the word goes back to the 17th century and it goes back to a time of fluidity in the development of the English language when the word transformation was not yet as standard as it is today. Transmogrify was just an accumulation of Anglo-Saxon and English words and sounds in order to make very clear, changing from one thing to another. The point made here by the Supreme Court of the United States is that the Supreme Court race in Wisconsin is transmogrifying into a statewide election just like any other.

But just in conclusion, if you want to understand what it means to transmogrify, I refer you to a box known as the Transmogrifier. It was a box that was invented for the process of transmogrification by a little boy named Calvin, who is a comic character, along with his sidekick, Hobbs. The little boy Calvin would put himself into this box and come out as whatever his imagination declared him to be, to the glee of his stuffed tiger named Hobbs.

Now, the point I want to make here is that one of the great cultural achievements in the United States was actually a comic strip, Calvin and Hobbs, which vexed me, by the way, in the pre-internet era when I couldn’t figure out why some work considering John Calvin and the philosopher Thomas Hobbs had become an unexpected bestseller. That was until I got the book of the comic strip Calvin and Hobbs, and I’ll just tell you, I was transmogrified. I was hooked.

Every once in a while, you just see something like this and you remember that, as much as we have to deal with so many heavy, massive worldview-shaking things, sometimes you just need to take a break when you see a word like “transmogrifying” and just remember a little boy and a stuffed tiger and an empty box.