Weekend Open Thread: Ketanji and Marine

By
Greg Diamond
– April 9, 2022Posted in: "The OC", Fresh Juice, Supreme Court

1. Ketanji

I’m very happy to see Judge — and now Justice-in-waiting — Ketanji Brown Jackson confirmed to the Supreme Court after a hideously disgusting confirmation hearing. (She will officially ascend when Justice Stephen Breyer retires sometime this summer, after the term ends in June.) I liked her personality and sensibility, admired her intellect, and felt warm fuzzies about what her accomplishment means for Black women in particular and the nation in general. But tons have been written about those aspects of her confirmation — you’re welcome to add your own comments here for posterity — and I want to touch upon her likely impact on the court.

Thank you, Justice Breyer, for retiring in time for Democrats to get her confirmed.

It’s been said since Justice Barrett’s confirmation that the Supreme Court was now divided into three distinct three three-Justice factions, but it hasn’t felt that way to me. Justice Breyer really never had the ideological coherence with Justices Kagan and Sotomayor that might have been expected, and what there was faded after Justice Ginsburg’s death. But I think that the replacement of Breyer with Jackson is going to make this “three factions” notion feel much more appropriate. From right to left, I’ll call those factions TAG, BRK (pronounced “break”), and BSK (pronounced “bisque,” or “bisk” if you don’t know how to pronounce the soup) — and they’ve now become much more coherent.

The last few terms have shown that Justice Alito has indeed gone off to become as wild and extreme as Justice Thomas — oh, how things would be different if G.W. Bush had indeed been able to confirm his first pick — and that Justice Gorsuch, while reported considered extremely congenial, sometimes lets textualism drive him to strange and unhealthy places. It’s also seems clear that Justices Kavanaugh and Barrett are closer to Chief Justice Roberts than to the right-wing TAG trio. Barrett in particular might bond with Jackson — seriously, who would most women with a teaching background want to hang around with? — and Kavanaugh is no longer indistinguishable from Gorsuch.

Kavanaugh is rightly scorned not only for the likely sexual assaults in his youth — at least one of which could easily have killed his victim — but also for unnuanced denials of that attempted rape (of course he doesn’t remember if, as is likely, it he was almost blind drunk) and his poorly attempted belligerent raving about how much he loves beer. It has come out since then that that was a command performance for an audience of one, Donald Trump, who was prepared to yank his nomination if Kavanaugh did not fight the battle Trump’s way: blatant lying and loud disrespectful disruption.) But as he’s shown, it does not mean that he won’t vote with the liberal trio when Breyer was part of it and is probably more likely to do so now. (You can despise him for old sins and new, but he’s a hell of a lot better than Thomas and Alito.) So, for now if the leftward BSK trio can get the Chief Justice on their side, they get two swings at the pitch — Barrett and Kavanaugh — to create a majority. Roberts in particular — despite his many years of working against voting rights — seems to have become rattled at what has become of the right (it’s violent populism, at least) and perhaps also, if he watches the news, at the growing crazed fulminations of right-wing Senators.

I expect that the rightward lurch of the court has gone too far to preserve abortion rights — an opinion that that Roberts will author, with its details worked out carefully with Barrett and Kavanaugh, to prevent Thomas, Alito, or Gorsuch from writing it, and one that may not for last long — and possibly marriage equality (although Gorsuch is better than this.) But those who say that Jackson is no ideologically different than Breyer are willfully blind. Breyer is a moderate technocrat, sort of being to the left wing what Roberts has become to the right, and I expect that Jackson will show a little more skepticism about unvarnished economic analysis.

But where Jackson will make the biggest difference from Breyer is, please forgive me for this, sociological. She’s part of a generational change on the court. Look at where the 10 people who will have served as Justices this year stand — and I’ll use red, purple, and blue for their usual purposes in labeling them by faction:

  1. Breyer, born Aug. 15, 1938 — 83
  2. Thomas, born June 23, 1948 — 73
  3. Alito, born April 1, 1950 — 72
  4. Sotomayor, June 25, 1954 — 67
  5. Roberts, born Jan. 27, 1955 — 67
  6. Kagan, born April 28, 1960 — 61
  7. Kavanaugh, born Feb. 12, 1965 – 57
  8. Gorsuch, born Aug. 29, 1967 — 54
  9. Jackson, born Sept. 14, 1970 — 51
  10. Barrett, born Jan. 28, 1972 — 50

The replacement of Breyer with Jackson reduces the age of the court by 32 years. (And Vern and I are about to become older than the court’s median justice, and the mean of all justices (61.33 and some months), down from 64 prior to Breyer’s retirement.) But the Court is also a dynamic human institution: Sitting between Thomas and Alito as opposed to Thomas and Breyer may make Roberts feel a little nuts. This is a court that will likely be together a long while, and its four youngest members longer still, and I think that Thomas and Alito may become increasingly alienated from the rest of the court. Wishful thinking, perhaps, but the departure (hopefully by resignation) of those two will do the court a world of good. But then Jackson will be in an odd position: at some point, Roberts and Sotomayor and maybe even Kagan will be gone, and she’ll be left with the three Trump judges. What struck me about her is that she seemed well-equipped to handle such a role: I could imagine her and Justice Barrett getting along very well, for example, and the two youngest male justices are nothing temperamentally like the oldest two.

Having four women on the court is going to make a significant difference. I think and hope that we will be pleasantly surprised.

2. Marine

Even as smiles at the confirmation of Judge Jackson as a Supreme Court Justice remain on the face of most Americans, a reason to scowl may be occurring just days later. In France, where President Emmanuel Macron stands a decent chance of losing finishing second in a Top 2 primary to far-right authoritarian xenophobe Marine LePen, daughter of similarly minded Jean-Marie LePen election — and it’s not entirely inconceivable (though highly unlikely) that he could finish third behind Jean-Luc Mélenchon, of the Unsubmissive (or Rebellious) France Party, the largest part of the left.

Going into the election, in which voting begins on the morning of April 10 (soon after I publish this), the six parties on the left (including the Greens) are polling at 29% (17.5% going to Mélenchon ), 26.5% goes to the centrist Macron, and 44.5% is going to parties on the right, with LePen’s National Rally polling at 22.5%. Both LePen and Mélenchon are for withdrawal from NATO, but otherwise they are as different as Trump and Bernie Sanders — and perhaps more so. While LePen may be able to expect support from all right-wing parties, Mélenchon could not likely expect support of the two furthest left Communist Parties, comprising about 2%.

LePen’s election would mean that a nuclear-equipped member of the U.N Security Council would be led by a more-or-less pro-Putin leader. She’s softened the imagine of her party in recent years, including ejecting her controversial father from it, but lots of French voters consider it window-dress, and it has meanwhile opened up the door for the Steven Miller of France, and rabidly anti-immigration Jew named Eric Zemmour. Mélenchon would be less worrisome, as the French government was run from 2012-2017 by a leftist, François Hollande, who managed not to destroy the place. We’ll report on results here as they come in.

3. Lessons for Democrats

President Biden did not trim his sails in committing to this appointment, nor in choosing a candidate who wasn’t the choice of Rep. James Clyburn, nor in aiming fire at Republicans who baselessly tormented her. And the public loved it. Her ratings were high, Biden’s ratings improved. Judge/Justice Brown, aside from not telegraphing an intent to vote in a particular way on cases that may come before her, was refreshingly candid about how she analyses cases and how she explains them both the public and to parties at trials. The fact that onetime Public Defender Joe Biden put the first Public Defender onto the Supreme Court is a beautiful pattern. So, there’s a real appetite for keeping faith with the Left these days, much as some Democrats would like to squelch it.

On the other hand, the haplessness of President Macron against the second generation of screwball proto-fascists — recognizing that as a “Proto,” Marine LePen is indeed an improvement over her father’s “Neo” — shows how little the mushy center can hold in our political times. Macron, sort of a Gavin Newsom-like figure who has been compared to Canada’s Justin Trudeau (by people who want to attack Trudeau) offers nothing more inspiring that a slow slide into fascism. But he’ll very likely get more votes than anyone on the Left, and will thus put the centrists (here, the institutional Democrats into the position that they love more than anything in the world: when they inform the Left that they have to support the centrist candidate against the crazy right-winger — and that they in fact have to support them so clearly that the center really need make no concessions to the left, and will reap the power granted them by the Left if they win and blame the Left if they lose.

We’re not going to like fascist France, in the EU (unless we see a Frexit) and in NATO (for as long as that lasts), but it will primarily be the fault of those who refuse to inspire or respect the public. But Putin is going to like it just fine.

This is your Weekend Open Thread. Talk about that or whatever else you’d like, within reasonable of decency.

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About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)