An affirmative action Supreme Court on Thursday upheld affirmative action at public universities. Shocker.
Justice Anthony Kennedy dubbed “student body diversity” at the University of Texas as “central to its identity and educational mission,” and noted evidence the university advanced reporting “feelings of loneliness and isolation” among minority students after the earlier Hopwood case restricted racial preferences and quotas, as reasons to discriminate against whites and Asians in admissions. Such concerns overrode the concerns of the Fourteenth Amendment’s equal protection clause.
Kennedy’s opinion bolsters the opinion of Republicans seeking to hold firm against holding a vote on President Obama’s Supreme Court pick Merrick Garland. Conversely, it also suggests they should not elevate their hopes should Donald Trump win the presidency.
The best president in our lifetimes nominated Anthony Kennedy to the high court. Granted, the Democrats borked Ronald Reagan’s first choice (Robert Bork) and his second choice (Douglas Ginsburg) effectively killed his nomination by admitting in the era of “Just Say No” that he said yes to marijuana in the previous age of “More, More, More” (What were they smoking in the ’80s?). But Reagan still picked a guy more known in California political circles than known for brilliant jurisprudence.
Think of a Supreme Court decision that played fast-and-loose with the text of the Constitution. Did a justice selected by a Democrat or Republican president author that opinion?
President Dwight Eisenhower nominated Harry Blackmun, who authored the Roe v. Wade opinion that invalidated abortion laws in all fifty states. President Gerald Ford nominated John Paul Stevens, who authored the Kelo v. New London opinion that okayed takings for private interests. President George W. Bush nominated John Roberts, who authored the National Federation of Independent Business v. Sebelius opinion that upheld Obamacare.
David Souter? William Brennan? Earl Warren? Don’t blame the Democrats.
Mere wishful thinking foresees Donald Trump holding a more enlightened view on the judiciary than Ronald Reagan. But it’s clear that the constituency that backs Trump holds a more mature take on the court than the one that elected Reagan.
The conservative movement, to the extent that phrase still paints a coherent and realistic picture, killed George W. Bush’s nomination of Harriet Miers. They will the current standoff over Garland even if some Republican senators would prefer to end it with a vote. If Trump seeks to nominate his real sister, former Judge Maryanne Barry, or his reality-TV soul sister, Judge Judy, the base likely Harriet Miers the nominee. That’s the difference between then and now on the judiciary — an educated base.
That education came via the way warned about by Ben Franklin: “Experience keeps a dear school, but fools will learn in no other.” When Republican presidents nominate judges, angry protests ensue — even for David Souter — with activists occasionally holding up scalps, such as those of Harrold Carswell, Clement Haynsworth, and Bork. When Democrat presidents nominate judges, a vote normally results with at most perfunctory opposition. The last Supreme Court nominee of a Democrat president voted down by the Senate came the century before the last one — with one of Grover Cleveland’s fellow Democrats leading the charge against the jurist he put forward.
The different treatment of each party’s nominees prefaces predictable behavior on the bench. Republican presidents attempt to avoid an inevitable fight by often presenting moderate or stealth nominees to the Senate. Democrat presidents know that no nominee of a Democratic president has faced even a close vote in anyone’s lifetime reading this. So, they nominate jurists who please the people who vote for them.
As a result of this, justices nominated by Democrats vote in a bloc — on NFIB v. Sebelius, Obergefell v. Hodges, Stenberg v. Carhart, and Thursday’s racial preference case the justices nominated by Clinton and Obama all ruled as one might have predicted. Supreme Court justices placed on the bench by Republicans offer something the ones nominated by Democrats don’t: surprises.
The former situation of programmed judges voting on cases the way citizens vote on candidates should alarm far more than the latter situation of wildcard judges deciding in ways that make former well-wishers decidedly angry. Republicans showing spine — in opposing judges with a track-record of contempt for the Constitution, in nominating the best judges rather than the judges that Senate Democrats likely view as the best they could get from the GOP — helps solve a problem eroding our democracy for the last half century or so: a judiciary that votes like a legislature instead of ruling like a court.
Justice may be blind. But justices often are blind partisans.
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