I love the Supreme Court. I got to see the building last fall. I have read “The Nine” by Jeffrey Toobin. As a liberal, I love RBG. I love the little snippets of quip and oration from the Justices and the lawyers who need to argue before them. I am not a lawyer, but maybe in another universe, I could have been.

Things I do not love: the downfall of the past few years. With the latest revelation that Ginni Thomas texted Mark Meadows to overturn the election, this has really soured the rest of it. Of course I already knew that she was already a threat in some way, but now this just confirms it. Aside from this current “scandal,” let’s go back to see the latest few Supreme Court picks:

  • Neil Gorsuch - I have no issues with Justices of opposite politics of me. I have nothing truly against Neil Gorsuch (although I’m sure I could find some ridiculous reasoning for ruling certain cases), but the issue was surrounding his nomination. It is a travesty that someone as qualified as Merrick Garland was not allowed even a hearing. This failure to even give a hearing is a mockery of the idea that we live in a meritocracy. Say what you will about his handling of the DoJ now, but you probably cannot say with the knowledge we had at the time, he was not qualified. You can also say what you will about the so-called “Biden Rule” as Mitch McConnell calls it. This isn’t a rule, it’s just what Biden said and is really based off the “Thurmond Rule” which is not even a “rule” as it is not consistently practiced. I guess that’s just politics.
  • Brett Kavanaugh - The second accused rapist to make it to the bench.
  • Amy Coney Barrett - Again I have nothing against how she rules or who she is regarding the court’s legitimacy. I am sure she is a qualified individual even though I am certain she will rule to overturn Roe v. Wade. Hate the game, not the player. My issue is the very short turn around hypocrisy of the “Biden Rule”/“Thurmond Rule” in a MUCH shorter time frame (9 months to election for Obama in ‘16 vs 2 months to election for Trump in ‘20). Legitimacy of the court really hit a low point here.

Of course there are issues with Justice Clarence Thomas and his ties to… his wife who asked to overturn the election. This leaves Chief Justice John Roberts and Justice Samuel Alito (ignoring his rather divided confirmation vote of 58-42) as the only conservative Justices who are relatively unscatched by controversy.

Does controversy matter on the court? In performance of duties, maybe very little other than some weird coworker interactions. In the effectiveness of the law? Maybe a lot. People need to view our justice system as “fair.” Once we lose trust in the system, we cannot meaningfully progress as a society. Why should anyone follow the laws when we cannot trust that they will be applied by legitimate judges?

Going back, here’s what I would have done to bolster legitimacy of the court:

  • Give Merrick Garland a hearing. Let the votes decide whether he should make it. Not a singular unilateral decision-maker using political theater to prevent even a hearing of it. With the Republican majority in the Senate at the time, a hearing wouldn’t have mattered.
  • Do not nominate Brett Kavanaugh. Amy Coney Barrett’s nomination here would have been much better for the legitimacy of the court. Or Gorsuch if he never made it in and Garland had actually been voted in.
  • Nominate a non-controversial Justice probably from the regular pool of the DC Court of Appeals judges.

I know every nominee will be villified in one way or another. Judge Ketanji Brown Jackson has been villified as soft on child porn prosecution. The words child porn generally scream at people right away, but of course we know her sentencing recommendations are status quo and the villification is theater for re-election clips. Alas, I am sure that the vote count will portray KBJ’s confirmation as a controversial pick. Let’s not forget Antonin Scalia was a 98-0 vote.