Friday, November 08, 2019

ABI's Keynote Address: CBS's Jan Crawford Talks About the Supreme Court

Jan Crawford of CBS News gave a talk on The Supreme Court Under Trump at the ABI Luncheon.  She asked the audience to turn back to 1990 – 1991.  David Souter and Clarence Thomas had just replaced two liberal giants on the court.  After Ruth Bader Ginsberg and Stephen Breyer were appointed in 1994,the same nine justices would serve together for eleven years.   It was a time of great hope for conservatives. With seven Justices nominated by Republicans, they were poised to undo the great excesses of the Warren Court.  Instead, the Rehnquist Court put Roe v. Wade on firmer ground, affirmative action was upheld and the wall of separation between church and state remained intact.

These disappointments would guide future Republican presidents. The selection process changed because of past disappointments.   These efforts had three components:

1. Vetting
2. Spine Test
3. Dynamics

President Trump has now named two Justices to the Court:  Neil Gorsuch and Brett Kavanaugh.  Will these new nominees change court in way that past ones have not?   At the moment the snapshot is still blurry.

Justice Souter exemplies the failure of vetting which allowed a stealth nominee onto the court.  Justice Alito was subject to extensive vetting leading to the conclusion that he had never written a wrong opinion. 

The list of potential nominees that Donald Trump released as a candidate list was conventional.  They were judges a president Romney would appoint. 

Judge Gorsuch wowed Trump.  He was not someone who would worrying about what the New York Times would say.  He had a solid judicial philosophy but had been through the storm.  President Trump saw Brett Kavanaugh the same way.

Strong conservative justices can effect the court. When Clarence Thomas joined the court in 1991, the narrative that he didn’t deserve to be on the court and that he just followed Justice Scalia. How wrong narrative was. The papers of Justice Blackmun describe a case where the justices were poised to vote 9-0 on a decision.  The next day, Justice Thomas told the Chief that he wanted to change his mind and circulated a memo.  Based on Thomas's persuasion, the Court flipped from 9-0 to 5-4 the other way based on the strength of Thomas's argument.. Justice Scalia followed Justice Thomas. This example shows how a new justice can mean a new court.

While Justice Thomas exemplified the spine test, Chief Justice Roberts and the congenial Justices Alito and Gorsuch demonstrate the importance of dynamics, that is, judges who will be able to persuade other judges.    The liberal judges are taking note. Justice Kagan was very welcoming to Justice Kavanaugh.   There has been a bit of a bro-mance between the Chief Justice  and Kavanaugh.

The court had a quiet term when Justices Kavanaugh and Gorsuch joined the court.  It's not going to be quiet this time.  Abortion, gun rights, race, Dreamers, immigration, and presidential power are all going to be on the docket. The big cases will come down in May and June smack in the middle of the presidential campaign.

The Supreme Court is the one institution in Washington that works.  There are nine really smart people on the court.

Rhetoric on right and left is that the court is political. Trump says judges are political. Hillary Clinton is taking shots at Trump judges. Ms. Crawford said it was a mistake to say the Trump nominees are not qualified.

With two liberal judges in their 80s, the court is likely to be in for change once again.

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