With a government that includes the Supreme Court and the Senate, who needs a coup?
Announcing her supposedly principled support for an eminently qualified judge’s ascension from the nation’s second most prominent court to its first, Sen. Susan Collins allowed that anyone familiar with her chamber’s current approach to the task “would reach the conclusion that the process is broken.”
Well, that was charitable.
To elevate the nauseous spectacle that greeted Judge Ketanji Brown Jackson’s Supreme Court nomination to a “process” is to imbue it with dignity it doesn’t possess. And to limit what’s broken to the Senate is to diminish the crisis engulfing the court itself.
Even with the Maine Republican’s aisle-crossing support, Jackson might barely be confirmed to a supposedly apolitical tribunal whose longest-serving current member, Clarence Thomas, is in such an ethical and political corner that Republican congressional leaders recently felt compelled to leap to his defense.
Thomas’ wife, Virginia “Ginni” Thomas, lobbied for the effective end of American democracy in text messages provided to the House’s Jan. 6 committee and recently published by the Washington Post and CBS News. The texts, which the justice’s spouse sent to then-White House chief of staff Mark Meadows in the aftermath of Donald Trump’s de-election, find her opposing a peaceful transfer of power, raging at Vice President Mike Pence’s refusal to overturn the result and relaying far-right fever fantasies. The latter included a bulletin to the effect that Joe Biden and his “co-conspirators” were “being arrested & detained for ballot fraud ... & will be living in barges off GITMO to face military tribunals for sedition.”
Mrs. Thomas, a reactionary agitator who has acknowledged attending the rally that preceded the attack on the Capitol, alluded in one text to a conversation with her “best friend,” a term she and the justice have publicly used for each other. But she has claimed that their respective careers simply don’t come up over dinner.
Curiously, though, when the Supreme Court turned down Trump’s attempt to block the release of White House records to the Jan. 6 committee a few months ago — upholding, as it happens, a lower court decision joined by Judge Jackson — Justice Thomas lodged the lone noted dissent. He was also one of three justices who dissented from the court’s refusal last year to consider disqualifying ballots in Pennsylvania and, in December 2020, one of two who differed with the court’s disposition of Texas’ unsuccessful effort to have four states’ votes thrown out.
California’s own Kevin McCarthy, the House minority leader, nevertheless expressed confidence in Thomas and his capacity to “make his decisions like he’s made them every other time.”
So, without regard to blindingly obvious conflicts of interest?
Federal law requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” including one in which “his spouse ... is known by the judge to have an interest that could be substantially affected by the outcome.” It’s therefore difficult to find a judicial ethics expert who shares McCarthy’s cheerful assessment.
Nor does Sen. Elizabeth Warren, D-Mass., who led a group of 22 Democratic lawmakers — including both of California’s U.S. senators, Dianne Feinstein and Alex Padilla — in demanding an explanation for Thomas’ failure to recuse himself from the Jan. 6 cases and calling for enforceable Supreme Court ethics rules.
As it stands, the only authority on the question of Thomas’ obligation to refrain from participating in a case is Thomas himself. Chief Justice John Roberts has explicitly left it to each justice to make such calls, noting that his colleagues’ “character and fitness have been examined through a rigorous appointment and confirmation process” — that is, the very carnival the nation just finished witnessing.
The justices’ monarchical assertion of self-oversight parallels their unlimited terms, which motivated the macabre interest in Thomas’ recent hospitalization and an outpouring of unsolicited retirement advice for Stephen Breyer, the justice Jackson would replace. Given the modern reality that removal through impeachment is a theoretical construct — left-wing calls to impeach Thomas notwithstanding — the justices themselves are also the sole earthly arbiters of their tenures.
And yet of all the ways this institution cries out for reform, Republican senators dwelt on the hypothetical prospect of packing it with more justices, even using Jackson’s refusal to weigh in on the matter as an excuse to vote against her. That’s absurd given that expanding the court would be entirely up to the other two branches if it had any chance of happening, which it doesn’t.
Besides the question of court-packing, Sen. Thom Tillis, R-N.C., excused his vote against a “well-qualified,” “historic” nominee — his words — by warning that she might “legislate from the bench.” It was almost as if an ultra-conservative court weren’t in the midst of rewriting national policy on public health, voting rights, firearms and abortion.
Those invented and imagined criticisms were mild, however, compared with the bigoted attempts to portray Jackson, who would be the first African American woman on the high court, as a criminal-coddling critical race theorist.
Imagine having to endure such a ritual humiliation to join such a benighted body. It was all despite the fact that Jackson would have no net effect on the extreme ideological orientation of the court, and even though the intense scrutiny of her record turned up none of the misconduct unearthed in the cases of, say, Thomas or Brett Kavanaugh.
And yet Collins, who insisted on personally interrogating Jackson for two and a half hours beyond the confirmation hearings before she could join the ayes, might alone rescue the judge from a 50-50 vote necessitating a rare vice-presidential tie-break. Meanwhile, Jackson is about as popular as any nominee in 35 years, with one recent poll showing two-thirds of the public supporting her confirmation.
With institutions as unaccountable to and misaligned with the people as the Supreme Court and the Senate, our democracy is being overthrown from within.