This week presented me with a plethora of material upon which to comment, and my current politically unmoored state provides considerable running room to piss off the extremists in both parties. So without further ado, let us proceed.
Scotus Confirmation
There is perhaps nothing more redolent of the stark decline of American political discourse than a Senate Judiciary Committee hearing examining a nominee for the Supreme Court. This applies no matter who is in the White House or who controls the Senate. It is flat-out theater of the absurd, it is bad for the Republic, and it serves no aspect of the Senate’s constitutional duty to advise and consent.
Nothing would make me happier than a conspiracy between a President and a nominee, in which the nominee—with a sterling record on the bench behind him or her—states plainly to the committee that he or she will not answer any questions they may pose. That their XX years on the bench and previous Senate confirmation provide members with all they need to decide upon their fitness for the position, and that they will not engage in partisan stupidity for the sake of future campaign commercials. And then they sit there. Silently. Judging. They can vote up or down, but don’t give them a word.
Judge Ketanji Brown Jackson would have been the perfect test case. In its editorial “No on Ketanji Brown Jackson”, National Review provided these two sentences that undercut the effectiveness of the larger argument:
Judge Jackson is sufficiently experienced for the job. At her hearing, she demonstrated that she is sufficiently learned in the law.
The final piece of this puzzle is that the President has nominated her. When I add these three things up…experience, knowledge, and an official nomination, I find it hard to then say, “nah, she shouldn’t be there”. Apparently, National Review doesn’t have this problem.
The hearing was replete with what Senator Ben Sasse (R-NE) referred to as “jackassery” from both sides, with Senators Cruz, Graham, and Booker distinguishing themselves in this category, and then Sasse vainly trying to distance himself from the charge with a “no” statement that boils down to “she’s great, she’s wonderful, she’s well-qualified, but I disagree with her”.
Not to be outdone by the stupidity of the Senate, the Washington Post gave away the game in an editorial entitled “Republicans Boast That They Have Not Pulled A Cavanaugh: In Fact, They’ve Treated Jackson Worse”. The suggestion that the treatment Judge Brown Jackson received was worse than that Judge Kavanaugh was subjected to is Orwellian to an extreme. Hell, Judge (now Justice) Barrett was treated worse than Judge Brown Jackson. There is absolutely nothing wrong with asking a Supreme Court nominee about sentencing (as long as that nominee is going to sit for questions). There is nothing wrong with asking a Supreme Court nominee about cases in which she was representing clients, even as a public defender (although asking these questions is pretty dumb, unless one questions our system of providing defense for those who cannot afford it). And finally, there is nothing wrong with asking a Supreme Court nominee how she would define what a woman is.
Let’s turn to that, shall we. Ketanji Brown Jackson is—as I have said in this column—well qualified for a spot on the Supreme Court. But the fact that she was sitting there as the nominee of President Biden is indisputably tied to three incontrovertible facts. First, that she is black. Second that she is a woman. And third, that she is well-qualified. We KNOW this because the President has TOLD us this. He made it VERY CLEAR that he was going to nominate a black woman. I thought publicly stating that from the get-go was unfair to the black woman eventually named, and I still think that. He should have simply NOMINATED a black woman after a broad-based search.
Let me stress this again. Judge Jackson was SITTING THERE because she is a woman, otherwise satisfactorily defined as an adult female. This was clearly the definition at hand when Joe Biden picked her, and is presumably associated with her husband’s decision to marry and reproduce with her.
That when asked—Judge Jackson could not offer a definition of what a woman is because she was not a biologist—was just another example of the absurd spectacle we were witness to. Judge Jackson’s “team” (the left) has decided to follow the science just as far as their social sensibilities will take them, and so because after several million years into human evolution we have determined that what we are is what we wish to be, this otherwise sensible and well-educated woman had to traffic in the vacuity of the moment. Now, the wags among you will say, “Wahoo, what is a female?” and point to all sorts of gibberish about six sexes and Klinefelter syndrome and the like, and I will stare blankly at you judgingly. Because you will be full of caca.
Jackson was playing by the rules of a silly game. But that is the point of this whole screed. The theater of last week changed no minds. It revealed nothing new. Ketanji Brown Jackson will be a reliable left of center vote, which is why (in addition to being black, female, and qualified) she was sitting there. The Constitution charges the Senate with the job of advice and consent. It is not charged with making the country dumber.
Ginni Thomas Is A Wing-Nut
As the House Committee investigating January 6th continues with its glacial investigation designed to uncover additional facts about the (obvious, organized, summoned, instructed, led, and directed) insurrection, news last week appeared that Ginni Thomas—NatPop activist (national populist, as I will not permit the use of the term “conservative” to be applied to anyone of this Trumpy ilk) and wife of Supreme Court Justice Clarence Thomas—had been in close communication with Donald Trump’s corrupt/idiotic Chief of Staff Mark Meadows, playing the role of networker, inciter, and possible unindicted co-conspirator in the effort to violently and fraudulently overturn the results of the 2020 election.
Read that link above. Look at the language she uses in these text messages. She is as deeply enmeshed in the pathology of this movement as any golf-cart equipped snow-bird or zip-tie carrying tactical bro.
I’ve always thought that attacks on her political activity were off-base, thinly-veiled hitjobs on her husband. That is a very difficult position to take amid these most recent revelations, especially when heroes of conservative legal thinking like Adam White of AEI are saying:
in general, previous criticisms of Ginni Thomas’s political work, as well as calls for the justice to recuse himself from participating in cases, were overstated and unfair. She should be allowed to have her own career, White and others have reasoned.
But, he said, the recent disclosures are “somewhat different because they pertain to a specific course of events that did give rise to Supreme Court litigation.”
“This does raise real questions about the need for Justice Thomas to recuse from future cases related to the Jan. 6 insurrection,” White said.
Ginni Thomas’s text messages, which do not directly reference her husband or the Supreme Court, illustrate her access to Trump’s inner circle to promote her efforts to guide the president’s strategy to overturn the election results. Meadows indicated in his responses that he was grateful to receive her advice.
Thomas has publicly denied any conflict of interest between her activism and her husband’s work on the Supreme Court. “Clarence doesn’t discuss his work with me, and I don’t involve him in my work,” she said in an interview with the Washington Free Beacon, a conservative news outlet, for an article published March 14.
The January 6th committee MUST subpoena Ginni Thomas, who while not “directly” referencing her husband in her text messages used the cutesy “best friend” sobriquet in undercutting the suggestion that they don’t discuss their respective work-lives. Caught up in the cross-fire here is genuine American hero Liz Cheney, who has resisted calls within the committee to subpoena Thomas. Now isn’t the time to go wobbly, Liz, and supporting a call to have Thomas appear “voluntarily” is not the same as requiring her to testify.
Do I think Clarence Thomas should resign? No. Do I think he should recuse himself from cases that might reach the Supreme Court touching on the insurrection? Yes. And if additional evidence arises of complicity with his wife’s political activities, I would urge the Senate to consider impeachment to deal with it.
On Biden’s Gaffe
This is a private message I posted to a closed group on Twitter, a bunch of folks who sorta loosely do what I do and think about the things I think about. A day later (it is now Sunday), I’ve had a chance to review expert opinion and the views of smart, civil, and poised people, and there seems to be a consensus that the President had gone too far. He was apparently “ad-libbing” this part of the speech (as he is prone to do—see my judgment of him as a “terrible speaker” above).
This consensus has led me to think again about what I wrote above—and I wouldn’t change a word. If our President is going to screw up, I’d rather he screw up like this. Biden is not at the top of his game. He could have not said this and his speech would have been a winner. Everyone is talking about this particular line, and that is unfortunate. I am ready to acknowledge this statement as a mistake, but—it is my kind of mistake.
The part of the exchange from Gianni Thomas and Mark Meadows I found most disturbing was her statement that “there are no rules in war”. That is wrong in more than one way.
Ok so let me take a stab at playing devils advocate on judicial confirmations. I didn’t watch the hearings and won’t defend Cruz, Hawley, and Co. for grandstanding. But basically, there’s two theories (as I see it) of Senate confirmation that have merit. The first appears to be your inclination and perhaps Sen. Collins: if the president nominates a person (such as Judge Brown-Jackson) who is eminently qualified, barring any major screwup, you should vote to confirm him or her to the court. In other words, you should defer to the president.
The second is what Sen. Sasse believes and probably explains how I would vote if I were on the Senate Judiciary Committee. While I respect the first theory, I don’t think “advise and consent” should equate to rubber-stamping. I think the Senate should hear the nominee (ie not do what they did to Garland) and hold a vote, but I think you can respectfully vote against the nominee based on serious disagreements about judicial philosophy and still be acting in good faith. In this case, while I respect Judge Brown-Jackson, I disagree with her judicial progressivism (although I’m impressed that she made noise about originalism). I would prefer a nominee who is a textualist or an originalist or who at least has a philosophy of jurisprudence influenced by respect for text, history, and tradition. If I were a Senator, I’d reserve the right to respectfully vote against a nominee whose judicial philosophy differed significantly from my own. And I think you can do that without rancor or bitterness.