GOP's "Demagoguery" on Jackson's Record

            When the Senate Judiciary Committee opened the historic hearing on the first-ever black woman nominated for the U.S. Supreme Court [March 21], Republican senators, one after another, all promised respectful consideration of her qualifications. In turn, they appeared to promise to avoid any underhanded partisan attacks of the sort that they attributed to Democrats in blocking Robert Bork’s confirmation to the Supreme Court in 1987 and in trying to derail Justice Brett Kavanaugh’s nomination in 2018.

            Despite relentless criticism from two of the committee’s most partisan Republican members, Missouri’s Josh Hawley and Texas’s Ted Cruz, Judge Ketanji Brown Jackson never flinched and showed “enormous patience” during three days at the witness table, as the National Law Journal’s Marcia Coyle remarked on the PBS NewsHour [March 23].

The committee’s chairman, Illinois’s Dick Durbin, similarly praised Jackson’s temperament as he prepared to wrap up the hearing on Thursday (March 24). “I believe she carried herself with grace and humility,” Durbin remarked.

The centerpiece of the Republicans’ line of attack, indeed virtually the only substantive criticism they could find, was Hawley’s compilation of Jackson’s below-guidelines sentences imposed on defendants in ten child pornography possession cases. The nation’s leading expert on federal sentencing policy, Ohio State University law professor Doug Berman, convincingly refuted the insinuation in a lengthy post on his “Sentencing Law and Policy” blog.

“To be truly fair and sound,” Berman wrote, “any review of Judge Jackson's CP sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe.”

In fact, according to Berman’s study of the data, Jackson’s sentences were well within “the mainstream” of other federal judges in similar cases. The data from reports by the U.S. Sentencing Commission “document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases, and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum.”

The Republican line of attack also fell flat with the veteran federal prosecutor, Andrew McCarthy, in an article he wrote for the conservative website National Review online. McCarthy began by stating his opposition to Jackson’s nomination, but went on to describe Hawley’s criticism as “disingenuous.” Hawley’s attack, McCarthy added, “is meritless to the point of demagoguery.”

Republican senators went beyond the cherry-picked compilation of cases to suggest that Jackson was generally “soft on crime” in her sentencing decisions in eight years as a federal district court judge in the District of Columbia (March 2013 – June 2021).

Members of the American Bar Association’s standing committee on the judiciary, appearing before the committee [March 24], testified that they heard no criticism of Jackson’s supposed bias toward defendants in their exhaustive investigation of her record in anonymous interviews with hundreds of lawyers familiar with her work.

“Notably, no judge, defense counsel, or prosecutor expressed any concern in this regard, and they uniformly rejected any accusations of bias,” D. Jean Veta, a senior counsel with the Washington-based law firm Covington & Burling and one of the ABA committee’s lead evaluators, told the senators.

Another of the ABA committee members, Joseph Drayton, a vice president of the National Bar Association, went further by explaining that the committee undertook its own review of Jackson’s sentencing decisions and found no evidence of bias. “We looked the record and how she came out and it didn’t appear as though she favored the prosecutor nor the defense in such cases,” Drayton said.

Despite the convincing refutations, Republicans kept up the line of attack over the weekend [March 26] by recirculating a tweet from no less a legal expert than Donald Trump Jr. “Democrats really doing their best to secure the paedophile [sic] vote for future elections this week,” junior tweeted.

The child pornography line of attack was one of several cynical tactics that Republicans used to score points with their political base rather than to examine Jackson’s qualifications fairly and thoughtfully. Tennessee’s Marsha Blackburn seized on Jackson’s work as federal public defender in representing Guantanamo detainees to suggest that Jackson worked to release “terrorists” from the U.S. prison camp.

Jackson explained, patiently, that she was assigned as federal public defender to represent one of the Guantanamo detainees and continued her representation after his case moved to a private law firm. Blackburn and other Republicans studiously ignored the legal profession’s ethical obligation to provide representation in the U.S. judicial system for anyone accused of criminal conduct. That tradition extends as far back as John Adams’ representation of the British soldiers accused in the so-called Boston massacre.

Cruz also seized on another of the GOP’s favorite issues: critical race theory, by trying to link Jackson, who sits on the board of the private Georgetown Day School, to one of the antiracist titles found in the school’s library. When eventually pressed for a direct answer about her view of CRT, Jackson had a complete answer. “It wouldn't be something that I would rely on if on the Supreme Court,” she stated.

Through three long days at the witness table, Jackson insisted time and time again that she had no ideological agenda and approached cases with detachment and neutrality. Her assurances failed, however, to satisfy the Senate’s Republican leader, Kentucky’s Mitch McConnell, who went to the Senate floor on Friday (March 25) to declare, “I cannot and will not support Judge Jackson for a lifetime appointment to our highest Court.” McConnell’s chief complaint appeared to be Jackson’s refusal to oppose increasing the number of justices on the Court, an issue for Congress to decide, not the Court.

The Times' Clumsy Blow for Free Speech

         The New York Times struck a clumsy blow for freedom of speech last week [March 18] in an unsigned editorial under the headline, “America Has a Free Speech Problem.” The Times’s editorialists diagnosed the problem as stemming from what they called “a destructive loop of condemnation and recrimination around cancel culture.”
            In a misguided attempt at bothsidesism, the Times faulted “many on the left” for refusing to acknowledge the existence of cancel culture. More substantively, the Times rightly pointed out the hypocrisy of “many on the right” who “for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers, and discourage open discussion in classrooms.”

This recent example illustrates the conservatives’ hypocrisy. The Supreme Court justice Clarence Thomas criticized “cancel culture” in a speech to a Republican audience in Utah on March 12, barely three months after his political activist wife Ginni Thomas joined fifty conservatives in urging the House GOP leader Kevin McCarthy to expel Reps. Liz Cheney and Adam Kinzinger from the House Republican conference because of their participation in the committee investigating the Jan. 6 insurrection. If McCarthy obliges, that would be cancel culture to the max.

            The Times editorial cited no instance in which a free-speech speaker has been “canceled” by individuals or groups seeking to shun or silence the speaker. The proof of the diagnosis consists, according to the editorial, of the results of a recent poll commissioned by the Times that showed only 34 percent of those surveyed believe that all Americans enjoy freedom of speech completely. Indeed, 84 percent of adult respondents called it a “very serious” or “somewhat serious” problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.

            From this observer’s recollection, the only free-speech speaker to have been effectively canceled during the past few years is Colin Kaepernick, who was blackballed out of his career in professional football based on a backlash by political conservatives. Football fans nationwide, encouraged by Republican politicians and conservatives, objected to Kaepernick’s taking a knee during the playing of the national anthem before an exhibition game in San Diego on Sept. 1, 2016, as a symbolic protest against police brutality against black Americans..

            A Wikipedia entry on “cancel culture” notes that “some public figures claim to have been ‘cancelled’ while continuing their careers as before.” The heavily annotated entry also cites several public opinion polls that record public concern about the issue, including one conducted by the Pew Research Center in 2020.

            The polls simply record the conservatives’ success in coining a weaponized term that necessarily stings and sticks in the public consciousness. A neutral term for the practice could be, for example, “consequence culture” or “call-out culture.” Either of those terms would show the practice to be fully consistent with freedom of speech: the freedom, that is to say, to disagree with what some free-speech speaker says.

            In that regard, it is worth recalling George Orwell’s prescient essay, “Politics and the English Language” (1946), in which he warned that thought corrupts language and language corrupts thought.

            The Times premised its critique on a free speech principle unfound in law books or First Amendment treatises. “Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned,” the newspaper lamented.

“This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear,” the newspaper added. “It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.”

Calling out offensive or hateful speech is an important First Amendment exercise that empowers the marginalized victims of prejudice or discrimination vis-à-vis established opinion leaders with regular platforms like the Times or respected professionals regularly invited to speak at prominent public fora, such as colleges and universities.

To be clear, the powers that be “canceled” black Americans in much of the country for a full century after the end of the Civil War. And LGBT individuals were similarly canceled out of public consciousness through most of U.S. history until the Stonewall protest in New York City in 1969. Only now have black Americans and LGBT Americans summoned the resolve to speak out against those who have silenced them and erased them from the United States’ melting pot.

            The “braying” from conservatives about cancel culture betrays their true purpose: to silence or disarm their opponents, not to establish some principled ground rules for public discourse and debate. The Times deserves a big raspberry for giving aid and comfort to the partisans who claim allegiance to free speech even while enlisting friendly politicians such as Florida’s governor, Ron DeSantis, to suppress free speech in schools and in the public square. [825]

Thomas's 'Unseemly' Behavior as High Court Justice

                 Clarence Thomas, Supreme Court justice, and his full-time political activist wife Virginia Thomas are Washington’s power couple du jour.  The New York Times lifted them to full-fledged celebrity status by using a flattering photograph of the couple as the cover of the Sunday magazine last month [Feb. 22] under the headline, “The Long Crusade of Clarence and Ginni Thomas.”

The cover photo illustrates the wisdom of Ronald Reagan’s communications team that a journalist’s hard-hitting report matters not a bit if the accompanying visuals are favorable. The Sunday magazine cover with the accompanying headline depicts the long-married couple as dedicated crusaders for political and legal justice.

            Moving away from the photograph, however, readers found a thoroughly documented article by investigative reporters Danny Hakim and Jo Becker that raised several ethical issues about the justice’s participation in political events and about the effect of Ginni’s political work on Thomas’s votes in Supreme Court cases.

            As the most concrete example, Hakim and Becker uncovered Ginni Thomas’s role as a leader of the conservative National Policy Council in encouraging members after the November election to contact legislators in three Biden-carried states to nullify Biden’s popular vote victories in those states. “The aim,” as Hakim and Becker wrote, “was audacious: Keep President Donald J. Trump in power.”
            It needs to be recalled that Trump, throughout this period, was challenging the Supreme Court to show resolve by validating his unsubstantiated claims of voting fraud in the election and by supporting his efforts to overturn the results of the election. In effect, Trump was counting on Justice Thomas and the other Republican-appointed justices as his hole card to support the first ever coup in U.S. history even as Thomas’s wife was encouraging her right-wing allies to do the same.

            Later, Ginni Thomas signed, along with 40 other self-identified conservatives, a Dec. 15 letter calling for the House Republican caucus to expel the two GOP members serving on the select committee investigating the Jan. 6 insurrection at the Capitol. On the very day of the Jan. 6 insurrection, Ginni Thomas in fact urged her Facebook followers to watch how the day unfolded, according to Hakim’s and Becker’s reporting. “LOVE MAGA people!!!!” she posted before the march turned violent. “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”

            As one suggestion of Ginni’s influence on her husband, the reporters noted that Justice Thomas was the lone dissenter from the Court’s 8-1 decision to order the Trump White House to turn over records and correspondence that the House committee was seeking to investigate Trump’s role in the insurrection. Significantly, Thomas participated in the case without recusal, as might have been expected given his wife’s public criticism of the committee’s work.

            Supreme Court experts can recall no Supreme Court spouse in history to have engaged so actively in partisan politics while her husband served on the Court. “I’m sure there are justices’ spouses who have had strong opinions about politics,” Orin Kerr, a law professor at the University of California-Berkeley, told the Times reporters. “What’s unusual here is that Justice Thomas’s wife is an activist in politics. Historically, this is the first example of something like this that I can think of at the Supreme Court.”

            Two weeks after the Times magazine piece, another reporter raised a separate ethical issue about Thomas, this one focused solely on the justice himself and his decision in December to hire the prominent right-wing judicial lobbyist Leonard Leo to promote a new ebook edition of Thomas’s memoir. The article by reporter Roger Sollenberger appeared in the online publication The Daily Beast on March 8 under this headline: “Clarence Thomas’s Strange Pick to Promote His Book Says It All.”

            Sollenberger noted Leo’s history as the former head of the Federalist Society and a “top fundraiser for right-wing judiciary activist groups” and depicted the role of Leo’s public relations firm CRC Advisors as going beyond promoting Thomas’s book and also to promoting a Thomas documentary and serving as registered agent for four Thomas-centric web domains.

            “What makes Thomas’ decision notable is that Leo happens to have a vested interest in the Supreme Court, and his dark money network actively tries to influence rulings,” Sollenberger wrote. Sollenberger quoted several experts as suggesting that Thomas’s connection with Leo “raises further questions about the arch-conservative justice’s deep and shady ties to a sprawling network of dark money organizations and right-wing activist groups, many of which have business before him.”

            Paul Collins, professor of political science at the University of Massachusetts at Amherst and author of several books about the high court told Sollenberger that Thomas’ specific choice of Leo’s firm was “strange” and “unnecessary.” Somewhat less critically, Stephen Gillers, a legal ethics expert at New York University Law School, told Sollenberger that Thomas’s ongoing connection with Leo was newsworthy but not of itself unethical. “It may appear to many people as unseemly,” Gillers said, “but that’s not a legal question.”

Senator Sheldon Whitehouse, a Rhode Island Democrat and longtime Senate critic of the right-wing campaign to control the Supreme Court and the federal judiciary, sharply criticized Thomas’s connection with Leo. “Leo and his CRC Advisors form the head of a many-legged dark-money operation designed to deliver on the priorities of right-wing donor interests,” Whitehouse told Sollenberger.

It is worth recalling here that Republicans hounded Justice Abe Fortas off the Supreme Court in 1969 based on an ethical issue far narrower than those being raised about Thomas’s political involvement today. Fortas was paid $15,000 for teaching a course at American University Law School that was funded by former clients from his law practice. He also accepted a $20,000 speaking fee from a family foundation of the financier Louis Wolfson, then under investigation for securities fraud. Fortas eventually returned the money but his reputation was ruined, leading to the first ever ethics-inspired resignation from the Court.

The Constitution specifies that Supreme Court justices and federal judges serve not for fixed terms but “during good behavior.” A question today for Justice Thomas is how much “unseemly” behavior is needed to disqualify him from continuing to serve on the Court.

Republicans Want Courts Out of Election Cases

             When the Supreme Court closed federal courthouse doors to partisan gerrymandering cases three years ago, Chief Justice Roberts stressed in Rucho v. Common Cause (2019) that states still had the authority to devise remedies for politically motivated districting plans. Now, however, Republicans in two states, North Carolina and Pennsylvania, are asking the Court to go back on its word by vesting state legislatures with unreviewable authority to enact election laws and procedures immune from judicial review based on a preposterous interpretation of the Constitution’s Elections Clause.

            Republicans in those two states filed emergency applications before the Supreme Court in late February asking the justices to block redistricting plans ordered by state courts that are somewhat more favorable to Democrats than the gerrymandered plans enacted by GOP-controlled legislatures. The emergency applications – Toth v. Campbell, 21A457, in the Pennsylvania case, and Moore v. Harper, 21A455, in the North Carolina case – do not focus on the specifics of the court-ordered redistricting plans, but instead contend that courts have no authority whatsoever to override legislative enactments regarding voting and election procedures.

            The Republicans have fashioned an argument all but unprecedented in two centuries of election-related litigation in the United States. They cite the Constitution’s Elections Clause [Art. I, sec. 1, cl. 4] as giving state legislatures all but exclusive authority over congressional elections. The clause reserves for Congress the right to alter state election laws, but as written in 1789 makes no mention of judicial review.

            “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”

            Arizona’s state legislature unsuccessfully argued this interpretation of the clause seven years ago in a legal challenge to a voter-approved initiative creating an independent commission to draw congressional and legislative districts. The Court’s 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) emphatically rejected the Arizona lawmakers’ argument.

            “The Elections Clause permits the people of Arizona to provide for redistricting by independent commission,” Justice Ruth Bader Ginsburg wrote for the majority. In creating the initiative process, Ginsburg emphasized, the state had determined that legislative authority could be shared with the people. “There is no suggestion,” Ginsburg wrote, “that the Elections Clause, by specifying ‘the Legislature thereof,’ required assignment of congressional redistricting authority to the State’s representative body.”

            In complete disregard of this holding, conservative legal advocates and Republican politicians have fashioned what is now being called the “independent state legislature doctrine,” based on a “deceptively simple” reading of the clause. The argument contradicts not only this Supreme Court precedent, but it also would reduce three constitutional amendments to nullities: the Fifteenth Amendment, the Nineteenth Amendment, and the Twenty-Sixth Amendment, which respectively prohibit states from abridging the right to vote on the basis of race, on the basis of sex, or on the basis of young age.

            Several election law experts have similarly pointed to the astounding implications of the Republicans’ arguments in these two cases. Rick Hasen, the nationally recognized election law expert at the University of California-Irvine School of Law, correctly noted to CNN’s Ariane de Vogue that the argument “could upend any rules that state courts … put in place that affect federal elections, such as striking down voter ID laws under state constitutions.”

            Writing about the Pennsylvania case on Twitter, Steven Vladeck, a professor at the University of Texas School of Law, also underscored the unsettling implications of what he called the “deeply problematic” argument. “It’s hard to underscore,” Vladeck wrote, “just how big a deal it would be if #SCOTUS granted this application (or the similar one from North Carolina), and used a summary shadow docket ruling to enshrine, formally or practically, the deeply problematic ‘independent state legislature’ doctrine.”

            Scott Lemieux, a political scientist at the University of Washington, also used a tweet to underscore the implication that this newly fashioned doctrine would leave no remedy whatsoever against partisan gerrymandering. “A ruling that state courts (and, hence, state constitutions) cannot interfere with parties gerrymandering themselves into permanent unaccountable power would be an extraordinary 1-2 punch to American democracy,” Lemieux wrote.

            The North Carolina and Pennsylvania applications have been pending on the Court’s shadow docket now for more than a week. The state officials named as respondents have filed comprehensive responses emphatically rejecting the argument for precluding state courts from overriding state legislatures in redistricting or other election-related cases.

            In the response in the Pennsylvania case, attorney Joshua Matz aptly called the Republicans’ argument “completely meritless.” Matz reminded the justices of the sixty-year history of state courts’ involvement in redistricting cases. “To start,” Matz wrote, “this Court has repeatedly and explicitly upheld the propriety of state courts drawing congressional districts when the legislative process fails to produce one. This theme emerged in many decisions issued during the 1960s, as legislatures and courts aimed to implement new constitutional requirements.”

            Lawyers representing the Tarheel state similarly rejected the Republicans’ argument as unsupported. “The Elections Clause does not negate state court judicial review of congressional districting plans under state constitutions,” they wrote. The lawyers noted further that the Republicans’ argument contradicted what they called “a half century of precedents.”

            Indeed, the Supreme Court was emphatic nearly a century ago in rejecting Texas laws limiting participation in Democratic party primaries to white voters. The unanimous ruling in Nixon v. Herndon (1927) struck down a Texas law enacted four years earlier that prohibited Negroes from voting in Democratic party primaries. The Court reinforced that decision two decades later after the state’s Democratic Party adopted a similar “white primary” rule. The 8-1 decision in Smith v. Allwright (1944) struck down a state law authorizing political parties to set their own rules, including white primaries. Neither of those decisions suggested that the Texas legislature’s enactments were immune from judicial review.