Philosophy Club Meeting Feb. 2
Please join us at our next meeting of the University of Hartford Philosophy Club this Wednesday, Feb. 2 from 1 p.m.-2 p.m. online using the link below, as the topic of conversation is: How We Should Choose Judges: The Legacy of Justice Meyer in the Post-Trump Era.
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Now that Supreme Court Justice Stephen Meyer has announced his retirement at the end of this term, we are brought to ask this question anew.
It seems we have gone off the track recently in the way we choose federal judges. The jumping of the tracks has occurred mostly in the Trump administration, but began before that in 2016, with the U.S. Senate, under the leadership of Mitch McConnell, choosing to ignore for nine months President Obama’s nomination on March 16th of Merritt Garland to the Court to replace Antonin Scalia.
This was followed by three of the closest fought Supreme Court confirmation battles in U.S. Senate history, aided by more shenanigans by Senator McConnell, this time carving out an exception in the Senate filibuster rule for the confirmation of judges, thus allowing three judges to squeak by, passing by narrow margins: first Neil Gorsuch, 54-45 in 2017, with the support of all Republican senators plus three Democrats; then Brett Kavanaugh, 50-48, in 2018, with the aid of one Democratic senator (Joe Manchin) despite one dissenting Republican (Lisa Murkowski of Alaska); and finally Amy Coney Barrett, rushed through just before the presidential elections, with no support from the minority party for the first time since 1870, and one Republican senator opposed (Susan Collins of Maine).
In the century before this, Supreme Court nominations typically went smoothy and with at least some votes on both sides of the aisle, the biggest controversies swirling around the nominations of Clarence Thomas (1991), during the George H. W. Bush administration; and Robert Bork (1987), during the Reagan administration. Although many were privately concerned about his conservative political stands, opposition to Thomas, who eventually passed 52-48, with two dissenting Republicans and eleven Democrats in support, was focused mainly on allegations – credible ones - of sexual harassment. The opponents of Bork, who was rejected 42-58 with two Democrats in favor and six Republicans in dissent, focused more on evidence regarding Bork’s judicial and political philosophy, which to many leaned precipitously in an anti-democratic direction. It didn’t help that Bork was still remembered as President Nixon’s henchman during Nixon’s last days, when he was at his worst and few others were willing to do his nefarious bidding.
Less well remembered are two of Nixon’s own nominations rejected in 1969 and 1970, in succession: Clement Haynesworth (45-55) and G. Harrold Carswell (45-51) respectively, two segregationists Nixon may well have offered up as symbolic thanksgiving to southern supporters without expectation they would be confirmed. After all, Nixon had just successfully with practically no opposition nominated Republican Warren Burger to replace Democrat Earl Warren, and directly after these two rejections offered Harry Blackmun, who passed 94-0. Nixon would go on to successfully nominate two more Supreme Court judges for a total of four.
Going all the way back before the cases just mentioned, there were several ways nominees were eventually blocked from ever becoming Supreme Court Justices. Not counting procedural delays, there have been twenty-one individual nominees who by a variety of means never made it to the highest court: rejection in the Senate (6), withdrawal of the nomination (5), allowing the nomination to lapse (5), indefinite postponement (1), or a combination of the above (4). Some presidents have had it worse than others, with Millard Fillmore only gaining one appointment out of four nominations and John Tyler only one out of nine!
The nomination process was also affected in the first century of the country’s existence by the allowed number of justices, which began in 1789 at six, moved to seven in 1807, nine in 1837, ten in 1863, then finally, after having been tapered down to eight, being returned to nine by the Judiciary Act of 1869, where it has stayed ever since.
(Complete document attached.)
An ongoing weekly tradition at the University since 2001, the University of Hartford Philosophy Club is a place where students, professors, and people from the community at large meet as peers. Sometimes presentations are given, followed by discussion. Other times, topics are hashed out by the whole group.
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