United States Supreme Court Justice Antonin Scalia during a January 28, 2013 book promotion at Southern Methodist University
Thanks to Bill from White Plains for another close look at the U.S. Supreme Court. His first post in this series is here. -promoted by desmoinesdem
At the end of the second Presidential debate, held on October 9, 2016 in St. Louis, Missouri, and at the outset of the third (and final) Presidential debate, held October 19, 2016 in Las Vegas, Nevada, both candidates – New York Republican Businessman Donald John Trump and former Democratic New York senator – and former United States Secretary of State – Hillary Clinton provided their “litmus tests” for their nominees to the United States Supreme Court.
The second debate in St. Louis was a so-called, “town hall style” debate, during which, after the professional moderators fired off their round of questions, audience members’ questions were posed to the candidates. In response to a question from audience member, Beth Miller, about the “most important aspect of selecting” a potential Supreme Court justice, Secretary Clinton said that she will look for individuals “who understand how the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench but, maybe they tried some more cases; they actually understand what the people are up against because I think the current court has gone in the wrong direction.”
A year prior to that debate, the make-up of the full compliment of justices on the United States Supreme Court was as follows:
• The senior-most jurist was Associate Justice Antonin Gregory Scalia, who was appointed to the Supreme Court by President Ronald Reagan in 1986. Prior to that appointment, Justice Scalia had been appointed by President Reagan, in 1982, to a post on the District of Columbia Circuit Court of Appeals. Before that, Justice Scalia was an academic, teaching variously at prestigious law schools like his alma mater, Harvard Law School.
Aside from those jobs, Justice Scalia’s only practical experience as a lawyer was during an unremarkable six years, in private practice in Cleveland, Ohio.
• Associate Justice Anthony McLeod Kennedy’s legal career is the most varied of all of his fellow Supreme Court justices. Prior his 1988 appointment to the Supreme Court by President Ronald Reagan, he spent 15 years on the Ninth Circuit Court of Appeals, having been appointed by President Gerald R. Ford in 1975 (upon the recommendation of then-California Governor, Ronald Reagan). When he was nominated to the Ninth Circuit, Kennedy’s prior legal experience had been running his family’s law practice for 12 years (and being an associate in that firm for two years, from 1961-1963). And during his time in private practice, he served several committee appointments and assisted Governor Reagan in writing tax legislation while teaching law at the University of the Pacific, McGeorge School of Law in Sacremento. Justice Kennedy graduated from Harvard Law School.
• Associate Justice Clarence Thomas, who was appointed to the United States Supreme Court by President George H.W. Bush in 1991, had previously served for a year and a half as an associate judge on the District of Columbia Circuit Court of Appeals. For eight years prior to that, Justice Thomas served as the Chairman of the Equal Employment Opportunity Commission. That is a Presidential cabinet position, achieved through the appointment of the President of the United States. Justice Thomas had been appointed to that post in 1982 by President Ronald Reagan). Before that, Justice Thomas had been part of another executive agency, an assistant secretary for civil rights in the United States Department of Education. Before entering the Federal government through these executive appointment positions, Justice Thomas was, for two years, a legislative assistant to Republican Missouri Senator John Danforth. He was an Assistant Missouri Attorney General for a few years, before that, and only very briefly did he gain some minimal private practice experience after graduating from Yale Law School.
• Associate Justice Ruth Bader Ginsburg was appointed to the Supreme Court by President Bill Clinton in 1993, after having served as an associate judge on the District of Columbia Circuit Court of Appeals for 13 years. Prior to the D.C. Circuit, Justice Ginsburg spent eight years as general counsel to the American Civil Liberties Union, working primarily with the ACLU’s Women’s Rights Project, which she had co-founded in 1973.
During those eight years, Justice Ginsburg argued women’s rights cases to the United States Supreme Court and several lower Federal courts. During that time too, and for the nine years that preceded it, she was a law professor at Rutgers University. Before that, from 1961-1963, she spent time in Sweden researching for a legal treatise on Swedish civil procedure. Before that, she clerked for United States Supreme Court Justice Felix Frankfurter, having graduated from Columbia Law School after transferring from Harvard Law School.
• Associate Justice Stephen Gerald Breyer was appointed to the Supreme Court by President Bill Clinton in 1994, while serving as the First Circuit Court of Appeals’ chief judge (having been appointed as an associate judge to the First Circuit by President Jimmy Carter in 1980). Prior to that, Justice Breyer had been an academic; a professor at Harvard since 1967. During that time, he was also a special counsel to the Watergate Committee and a special counsel to the United States Senate Committee on the Judiciary.
Prior to 1967, Justice Breyer was for two years a special assistant to an Assistant United States Attorney General focusing on anti-trust issues, and before that, he was a law clerk to very short-term United States Supreme Court Associate Justice Arthur Joseph Goldberg (Justice Goldberg was appointed by President John F. Kennedy in 1962 and resigned in 1965 to become the United States’ Ambassador to the United Nations). Before that, Justice Breyer had graduated from Harvard Law School.
• Chief Justice John Glover Roberts Jr. was serving his second year as an associate appellate court judge on the District of Columbia Circuit Court of Appeals, having been appointed to both the D.C. Circuit and the United States Supreme Court by President George W. Bush. Prior to that, Chief Justice Roberts had served in private practice for six years, during which President George H.W. Bush had unsuccessfully attempted to have him appointed to the D.C. Circuit Court of Appeals.
During the Reagan Administration he served as special assistant to the President, having spent a year prior as a special assistant to United States Attorney General William French Smith – an Executive branch cabinet officer. Before that, Chief Justice Roberts had clerked for two Federal judges – first, Second Circuit Court of Appeals Judge Henry Jacob Friendley and second, then-Associate Supreme Court Justice (later-to-be-Chief Justice) William Hubbs Rehnquist. Prior to becoming a Federal law clerk, Chief Justice Roberts graduated magna cum laude from Harvard Law School, having been managing editor of the Harvard Law Review.
• Associate Justice Samuel Anthony Alito Jr. had been serving as an associate judge for the Third Circuit Court of Appeals for 15 years (having been appointed to that job by President George H.W. Bush in 1990), when President George W. Bush appointed him to the United States Supreme Court. Prior to his Third Circuit appointment, Justice Alito spent three years as the United States Attorney for New Jersey, and before that, he spent four years as an Assistant United States Solicitor General in the Reagan Administration. Prior to that, he spent four years – from 1977 to 1981 – as an Assistant United States Attorney for New Jersey’s only Federal District – and before that, he clerked for Third Circuit Court of Appeals Judge Leonard I. Garth. His clerkship with Judge Garth immediately followed Justice Alito’s graduation from Yale Law School, where he served as editor of the Yale Law Journal.
• Associate Justice Sonia Maria Sotomayor, the Supreme Court’s first Latina, was appointed by President Barack Obama in 2009. At that time, she was a justice on the Second Circuit Court of Appeals, having been appointed to that position in 1998 by President Bill Clinton the year before. Her 1997 nomination lapsed because of a Republican Senate that refused to act on her nomination – as it had so many other Federal judicial nominations made by President Clinton at that time.
Prior to serving on the Second Circuit, Justice Sotomayor had been an United States District Court Judge for the Southern District of New York since 1991, having been appointed to that position by President George H.W. Bush. Before that, she spent five years in private practice while serving various appointed board positions, including one with the Puerto Rican Legal Defense and Education Fund. Prior to her brief private practice, Justice Sotomayor was an assistant New York county attorney and before that, she graduated from Yale Law School summa cum laude, having served as an editor for the Yale Law Journal.
• Associate Justice Elena Kagan had served as United States Solicitor General under President Barack Obama for one year prior to he appointed her to the United States Supreme Court in 2010. Her job as Solicitor General was preceded by her brief deanship of the Harvard Law School which, in turn, was preceded by her having been an Harvard Law School professor, during which time she wrote substantial legal Journal articles examining the Supreme Court’s First Amendment jurisprudence. Before becoming at tenured professor at Harvard, Justice Kagan, in 1999, had been nominated to the D.C. Circuit Court of Appeals by President Bill Clinton, but her 1999 nomination was stalled, and it eventually lapsed, by a Republican Senate and a Judiciary Committee Chaired by Republican Senator Orrin Grant Hatch, who refused to consider it.
Before her initial, unsuccessful bid for the Federal judiciary, Justice Kagan served as Deputy Assistant to President Clinton for Domestic Policy and Deputy Director of the Domestic Policy Counsel for two years. For a year prior to that, 1995-96, she served as President Clinton’s associate White House counsel. She was an University of Chicago Law School professor from 1991 through 1995. Justice Kagan clerked for United States Supreme Court Associate Justice Thurgood Marshall in 1988 and the year before that, she clerked one year for District of Columbia Circuit Court of Appeals Associate Judge Abner Joseph Mikva. She clerked for Judge Mikva after graduating, magna cum laude, from Harvard Law School, where she was supervisory editor for the Harvard Law Review.
These biographies, though tedious, point up the “wrong direction” to which Secretary Clinton referred. With the exception of Justice Kennedy, who at least practiced law for 15 years before entering academia for 23 years, all of the other justices were primarily either academics or appointed civil servants prior to joining the United States Supreme Court. Indeed, three of the justices, Scalia, Thomas and Ginsburg, were specially groomed for the Supreme Court, having been plucked out of academic and government jobs and appointed to the D.C. Circuit Court of Appeals. For that matter, President Obama’s current nominee for the Supreme Court, Judge Garland Merrick, is chief judge of the D.C. Circuit Court of Appeals, having been appointed to that position by President Bill Clinton in 1997. Before that, Judge Merrick had, like all of the others, been an Ivy League law school graduate (Harvard), and a Federal appellate law clerk, first to a circuit court of appeals judge and later to an United States Supreme Court justice (Justice William Joseph Brennan) and very briefly at a Washington D.C. based corporate law firm, Arnold & Porter.
Justice Sotomayor, at least, served as a trial (Federal district court) judge, so she – unlike any of her colleagues – came to the Supreme Court with a real comprehension of the machinations of Federal district court trial practice, and the thinking that goes into Federal trial court rulings.
So, Secretary Clinton’s observation that the current court is not made up of people “who understand how the world really works, who have real-life experience,” has considerable merit. There is very little practical knowledge on the current United States Supreme Court.
* * * *
The litmus test for Republican Presidential Candidate Donald Trump’s Supreme Court nominees is, when boiled down, two issues: gun control, and anything else that deceased Associate Justice Antonin Scalia thought was important. During the second presidential debate in St. Louis, Candidate Trump said he was “looking to appoint judges, very much in the mold of Justice Scalia.” He described “in the mold of Justice Scalia” as “people who respect the Constitution of the United States.”
Justice Scalia’s legal legacy involves an analysis he coined as, “original intent,” or, “textualism.” These terms supposedly involved an interpretation of the United States Constitution that reflected precisely what the framers were thinking when they wrote the Constitution and its amendments (and for that matter, what Congress was thinking when later amendments were added).
A careful reading of Justice Scalia’s jurisprudence demonstrates that his rulings were quite often – perhaps more often than not – outcome-determinative, and the sort of “textualism” he bragged about was nothing more than a masked manipulation of whatever texts he could find from a particular time period that justified the result he sought.
One of Justice Scalia’s most widely known opinions employing this brand of “original intent” was District of Columbia v. Heller, a 2008 majority opinion he wrote regarding the question, whether the Second Amendment to the United States Constitution permitted the District of Columbia to require its citizens to either lock their weapons or unload and disassemble them when not in use.
In that case, Justice Scalia wiped out the entire first phrase of the Second Amendment, which says, “A well regulated Militia, being necessary to the security of a free state,” and determined individuals – not Militias – have a right to bear arms to secure their own individual self-protection – not the protection of a free state. He reached this determination by saying, in effect, “back in 1787, every moron knew he could have a gun if he were in a militia so, why would the framers bother to create an amendment that stated the obvious?” When confronted with Justice John Paul Stevens’ dissent, which asked how Justice Scalia and his four like-minded brethren could ignore the first half of the amendment, and the words employed, Justice Scalia – the self-proclaimed “originalist” – wrote, “[i]t is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.”
So much for “textualism;” but that was the admirable trait of Justice Scalia that Candidate Trump seeks in judicial nominees. And very frankly, that trait was Justice Scalia’s charm. Reading tripe at that level of sophistication, from such a venerated self-promoter, brought a smile to the most cynical of lawyers’ lips; you had to love the guy, and his hubris.
In any event, the first qualification being a person “in the mold of Justice Scalia,” Candidate Trump’s second – and only – other articulated qualification for a Supreme Court nominee was a desire to “uphold” the Second Amendment to the United States Constitution. According to Candidate Trump, the Second Amendment “is totally under siege by people like Hillary Clinton.” Of course, Hillary Clinton currently holds no political office.
For her part, Secretary Clinton said during that second debate, “I respect the Second Amendment. But I believe there should be comprehensive background checks. And we should close the gun show loophole and we should close the on-line loophole.” Similarly, during the final debate last week, Secretary Clinton said, “I understand and respect the tradition of gun ownership; it goes back to the founding of our country. But I also believe that there can be and must be reasonable regulation.”
“Because I support the Second Amendment,” she continued, “doesn’t mean that I want people who shouldn’t have guns to be able to threaten you; kill you or members of your family.” She concluded that “[t]here’s other matters that I think are sensible, that I think are the kind of reforms that would make a difference that are not in any way conflicting with the Second Amendment.”
Secretary Clinton described the District of Columbia’s legislation (struck down in Heller by a 5-4 majority), requiring locking up or unloading and dis-assembling firearms when they are not in use, as the sort of reasonable legislation, aimed at trying “to protect toddlers from guns… . because unfortunately not everyone who has loaded guns in their homes takes appropriate precautions.”
“I see no conflict,” she said, “between saving peoples’ lives and the Second Amendment.”
For his part, during the final debate, Candidate Trump proclaimed that his Supreme Court judicial nominees “will feel very strongly about the Second Amendment” and “will not do damage to the Second Amendment.” This echoed his remark from the second debate: that he would choose “people who will respect the Constitution of the United States and I think that this is so important.” Candidate Trump did not answer a question about his support of a national “Right to Carry” law nor a question about his rejection of any bans on assault weapons and high-capacity magazines. Instead, he proudly bragged that he was endorsed by the National Rifle Association – a “take-no-prisoners” gun advocacy political lobbying group that does not support any meaningful regulation on gun ownership whatsoever – claiming the endorsement was “the earliest” endorsement any candidate has ever received from that group.
The casual viewer wouldn’t know it but, gun control is not an hot-button issue in this Presidential campaign. Indeed, a Pew Research Study conducted during the week, June 15-26, 2016, revealed that “gun policy” comes in at # 5 of the most important political issues (at least as of June 26). Ahead of it are #1, the economy, #2, terrorism, #3, foreign policy and #4, health care. Of note though, is the fact Candidate Trump has received few endorsements from significant lobbying groups. Perhaps that is why his requirements for a Supreme Court nominee are so myopic: all he wants are nominees who think like Justice Scalia – who wrote Heller – and who would find unconstitutional any restrictions on gun ownership and use.