Toon: Speedy McConnell

 

I give 2020 zero stars.

Would not recommend.

Q Toon: Judge for Yourself

In among all the stuff in the Corrupt Trump Administration's news dump over the extended Thanksgiving weekend was a request to the Supreme Court to overrule a lower court injunction against Trump's executive order banning transgender service members in the U.S. military.

The move would bypass federal appeals courts, which is highly unusual but not absolutely unheard of in the case of a national emergency. If preventing transgender patriots from serving their country sounds to you like something that calls for the combined forces of Agent Bauer, the Impossible Missions Force, and the DC Comics line-up, Mr. Trump has an opening in the Justice Department for you.

Even more highly unusual was the response by Supreme Court Chief Justice John Roberts to Trump's complaining about another lower court ruling (this time on his draconian asylum policy) because it was delivered by an "Obama judge."

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in a statement. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."
"That independent judiciary is something we should all be thankful for."

This direct rebuke of a president goes well beyond anything we have witnessed before. Justice Alito silently mouthed "not true" during a paragraph about campaign financing reform in one of President Obama's State of the Union addresses; but you didn't see him issuing an official statement defending corporations' and foreign entities' right to bankroll our elections. Unless you count his having signed on to the Citizens United majority opinion.

For the purposes of this week's cartoon, I'm conflating the transgender service member and immigrant asylum cases. Judge Colleen Kollar-Kotelly, who blocked Trump's anti-trans policy, was appointed to  the United States District Court for the District of Columbia  in 1997 by Bill Clinton, not by Barack Obama.

Well, it's not as if Mr. Trump is a stickler for factual accuracy.

I might also point out that the humans and buildings in this cartoon are not drawn to scale, in case anyone was wondering.

Thwart the Court

It may yet be early to foresee how the current Kavanaugh confirmation hearings will turn out. Nevertheless, Seriatimback Saturday takes a look at Supreme Court nominees who came up just a little bit short. In my own lifetime, anyway.

I wasn't drawing political cartoons in 1968 when President Lyndon Johnson tapped Associate Justice Abe Fortas to be Chief Justice upon the retirement of Earl Warren. Johnson had faced no significant opposition when he named Fortas to the Supreme Court in 1965, but by the time he announced his decision to elevate Fortas to Chief Justice, Johnson was politically weakened by Vietnam War weariness and had already announced that he would not run for reelection.

"Hear Ye, Hear Ye!" by Karl Hubenthal in Los Angeles Herald-Examiner,  July, 1968

A coalition of conservative Republicans and southern Democrats filibustered the Fortas nomination, initially claiming the grounds that Johnson was a lame duck who shouldn't be deciding the direction of the Supreme Court for years to follow. More to the point was Fortas's close friendship with LBJ — he'd be accurately described as a crony of the President — and his and the Warren Court's liberal record.

"Senate Judiciary Committee Members..." by Pat Oliphant in Denver Post, July, 1968

Senator Strom Thurmond (R-SC) attacked Fortas for his having voted with the Court's majority rulings in favor of free speech rights in pornography cases. In closed session of the Senate, Thurmond played a number of the porn films which had been at issue in those cases, even entering them into the official Senate record. Thurmond's tactic was widely ridiculed, but proved effective in blocking Fortas's nomination (and along with it, LBJ's nomination of Texas Congressman Homer Thornberry to take the seat Fortas would have vacated. Perhaps Clyde Peterson, Herc Ficklen, or some other Texan drew a cartoon or two about Thornberry's nomination, but I haven't seen one).

Richard Nixon got to name Warren Burger as Chief Justice in Fortas's stead, and every Chief Justice since has been a Republican nominee. Fortas would soon be compelled to resign from the Court over his financial association with a Wall Street financier in trouble for securities violations, opening another seat for Nixon to fill.

As a critical element of his "Southern Strategy," Richard Nixon came into office having promised Strom Thurmond that he would name a conservative southerner to the Supreme Court. To fulfill his promise he nominated Clement Haynsworth Jr., a South Carolina judge who had a record of foot-dragging on racial integration and of opposition to labor unions.

Support and opposition to the Haynsworth nomination were both bipartisan. Southern Democrats including Judiciary Committee Chairman Eastwood supported him, while liberal Republicans were troubled by accusations that Judge Haynsworth had ruled on matters in which he had a financial interest, and had bought stock in the Brunswick Corporation while hearing a case in which it was involved.

"Aw, What're a Few Conflict of Interest Stock Deals?" by Bill Sanders in Milwaukee Journal, October 11, 1969

A tangential relationship with Bobby Baker, a Senate staffer convicted of larceny and tax evasion in 1967, proved to be the straw that broke the camel's back. Following the Senate's 45-55 vote to reject Haynsworth, Nixon's next nominee was a Tallahassee, Florida judge named G. Harrold Carswell.

Civil rights leaders were skeptical of his repudiation of a 1948 racist speech he had given, yet Democrats were at first wary of mounting opposition to a second southern judge. Sen. Edward Brooke (R-MA), the lone African-American in the Senate, led opposition to Carswell.

The Senate Judiciary Committee approved his nomination 13 to 4 in spite of Carswell's spectacularly mediocre judicial record. Seven out of 24 of his rulings had been overturned on appeal. Florida State University law school dean Joshua Morse claimed, "I cannot think of a single thing of Judge Carswell's that I am familiar with." Harvard Law Dean Derek Bok said, "The public record of Judge Carswell's career and accomplishments clearly does not place him within even an ample list of the nation's more distinguished jurists."

"How Can You Ask Us to Support a Guy..." by Tom Curtis in Milwaukee Sentinel, March 18, 1970

Speaking in Carswell's defense, Sen. Roman Hruska (R-NE) famously replied, "So what if he is mediocre?  There are a lot of mediocre judges and people and lawyers.  They are entitled to a little representation, aren’t they?  We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there."

"Holmes v. Carswell" by Pat Oliphant in Denver Post, March 25, 1970

Nixon pulled out all the stops to convince Republicans that they had a duty to confirm Carswell, but in the end, 51 Republicans and Democrats voted down the nomination. Grousing that Senators would never confirm any southern conservative, Nixon named Minnesotan Harry Blackmun as his third choice for Oliver Wendell Holmes' seat on the high court. (Blackmun would author the majority opinion in Roe v. Wade, and conservatives would resolve never to nominate any but the most reliably right-wing justices ever again.)

I have no editorial cartoons to accompany this next item (nobody draws cartoons about the dog that didn't bark), but this is a good moment to point out that Jimmy Carter remains the only president since Andrew Johnson not to name a single justice to the Supreme Court. Even James Garfield, president for only six months and on his deathbed for almost half of that time, got to name Stanley Matthews to the Court.

We now come to appointments I had the opportunity to draw about myself, so I don't have to continue stealing other cartoonists' work. In 1987, Ronald Reagan raised liberals' hackles by appointing former Solicitor General Robert Bork to the seat vacated by Justice Lewis Powell. Bork had been the Nixon underling who fired Watergate Special Prosecutor Archibald Cox when his superiors, Attorney General Elliot Richardson and Deputy A.G. William Ruckelshaus, resigned rather than carry out Nixon's order. He was also outspoken on his goal of overturning the civil rights and privacy rulings of the Warren and Burger courts.

After the Senate voted 42-58 to reject Bork, Reagan's next choice was Douglas Ginsburg (no relation to RBG), a 41-year-old whom he had named to the U.S. Court of Appeals for the District of Columbia a year earlier.

The Ginsburg nomination quickly collapsed after news broke of his marijuana use in the 1960s and 70s as a student and as an assistant professor at Harvard. Ginsburg withdrew his name from consideration after only ten days in the national spotlight, and the spectre of Reefer Madness breaking out in judges' chambers was averted.

George W. Bush had two Supreme Court vacancies to fill in the summer of 2005: longtime Bush friend Harriet Miers led the search for a successor to Sandra Day O'Connor, for which she recommended John Roberts. But when Chief Justice William Rehnquist died of thyroid cancer, Bush decided to nominate Roberts to replace Rehnquist and Miers to succeed O'Connor.

Democrats and Republicans alike found her answers to Senators' questions lacking, contradictory, and even insulting. Having no experience as a judge, elected official, or academic, her record was even thinner than Carswell's.

With Republicans in the majority, it was their reservations about her commitment to conservative orthodoxy that would doom her appointment. Sen. Jon Kyl (R-AZ) saw to it that every one of her verbal missteps, especially statements that suggested that there was an outside glimmer of a ghost of a chance that she might perhaps uphold Roe v. Wade, made it into the press. Miers withdrew from Senate consideration before a vote could be taken.

Finally, we come to Barack Obama's foiled appointment of Merrick Garland after the sudden death of Justice Antonin Scalia. Whereas Republicans this year have expressed a sense of urgency to fill the Anthony Kennedy vacancy, Senate Majority Leader Mitch McConnell (R-KY) found no necessity to have nine justices on the court when its fall term was to begin nine months later, on the grounds that there was to be a presidential election a month after that and the inauguration of a new president after yet another two months.

Unlike Abe Fortas, Merrick Garland never even got a hearing.

Speaking of lame duck appointments, here's another bit of historical Supreme Court trivia for you. Having been defeated his reelection campaign in 1840, President Martin Van Buren nominated Peter Vivian Daniel to the Court one week before leaving office in 1841. The U.S. Senate confirmed Daniel's appointment in five days. 

Q Toon: Moore-ality Play

Cartoonist and content provider Daryl Cagle coined the term "Yahtzee" for when two or more editorial cartoonists draw the same idea on the same topic. That's what happened with the cartoon I drew on Sunday night, because I've seen the same basic idea, more or less, in the meantime drawn by Steve Sack and Phil Hinds. (Sack, as ever, did the concept up best, if I do say so myself, since he's not the sort to say it himself.)

Anyway, it's too late to change my cartoon now, and besides, all the other great ideas about Alabama's Republican nominee for the U.S. Senate have already been taken.

When I was at the drawing board, my chief worry was that Judge Moore would drop out or be forced out of the race between then and now.

I needn't have worried. A poll found that 37% of Alabama Evangelicals, and 29% of the electorate in general, claimed they were "more likely" to vote for Moore after the allegations against him were made public. Dinesh D'Souza, or whomever he was plagiarizing, tweeted that he used to be lukewarm about Moore, but now "we must elect him." An Alabama politician compared Moore to St. Joseph, Step-Father of Our Lord, and an Alabama pastor slammed Washington Republicans as "sissies" for withdrawing their support of Moore.

On the other hand, current polls show that Moore's Democratic opponent, Doug Jones, has come from behind and may have as much as a 12-point lead. Jones, a former U.S. Attorney during the Clinton administration who prosecuted Klan members who bombed a black church in 1963, has been careful to distance himself from national Democrats. Republicans are desperately considering delaying next month's special election, or pushing a write-in campaign for incumbent Luther Strange, whom Moore beat in the September primary.

I don't know whether Alabama is one of those states that requires a run-off election if nobody gets over 50% of the vote, but it seems likely (that being one of the tactics southern states used to safeguard against Black candidates coming out ahead if the White vote were split); that would be a possibility if Republicans split between Moore and Strange. National Republicans would prefer a Strange-Jones runoff or maybe a Strange-Moore runoff, but could be stuck with a Moore-Jones runoff prolonging their present agony.

Senate Majority Leader Mitch McConnell, an evil wizard at the byzantine rules of politics, has even floated the idea of having Strange resign from the Senate before the December election, in order to force a new election. If Moore should win next month's election outright, the Senate could vote to expel him, allowing Alabama's Republican Governor to appoint a replacement. That seems a long shot with little precedent, but so did refusing to consider President Obama's appointment of Merrick Garland to the Supreme Court.

These are interesting times. Strange days, indeed.

100 Years Ago: Judge John H. Clarke

100 years ago today, July 14, 1916, President Woodrow Wilson nominated Ohio judge John H. Clarke to the United States Supreme Court to fill the vacancy created when Associate Justice Charles Evans Hughes resigned from the Court to accept the Republican nomination to run for president.

The United States Senate unanimously approved the Clarke nomination in just ten days.

Ten. Days.

Today, July 14, 2016, it has been 120 days since President Barack Obama officially nominated Judge Merrick Garland to the United States Supreme Court. The Court begins its Fall session in another 81 days from now. No confirmation hearings have been held, nor are any being planned, ostensibly because there's a presidential election in 117 days, and Republicans have decided that such things are simply not done in a democracy.

The nine-member Supreme Court in the Fall of election year 1916.