Hypocrisy on the Court
Terry H. Schwadron
March 27, 2022
The Supreme Court hypocrisy cup was running over this week:
· Even as Sen. Ted Cruz (R-Texas) was trying to broil Judge Katangi Brown Jackson over open coals at her confirmation hearing for the Supreme Court because her kids’ private school used and keeps books that Cruz finds offensive, it turns out his own kids’ private school uses exactly the same texts, after journalists checked.
· During the very days in which Republican senators were insisting that Judge Jackson was a “judicial activist” who would promote a Left-leaning agenda on the court, the Supreme Court itself issued an unsigned “shadow docket” decision overruling the Wisconsin Supreme Court to allow a Republican gerrymander of congressional districts to stand, despite statements to stand down from elections.
· And The Washington Post unearthed emails between Republican operative Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and Mark Meadows, then chief of staff at the White House, promoting plans to rescind the 2020 election results in language demanding heavenly intervention. Justice Thomas, in turn, faces questions about why he does not recuse himself from cases brought about the election or the Jan. 6 attempts to overturn the results.
Hypocrisy in politics obviously is nothing new and certainly applies to politicians of all stripes. This week happened to draw especially hard on the sanctimoniousness of Senate Republicans who were able to howl about Judge Jackson’s sentencing record — in line with other federal trial judges — a toughness about enforcing the law and about avoiding activism on the bench.
The problem is that we were watching the exact opposite happen in hearings that stood in for political ad-making. Almost lost in the process were questions, comments and plain excited to welcome a remarkable, analytical candidate with actual trial experience and service as a public defender to the court.
The Cruz Crush
Here was Dana Milbank, Washington Post columnist, fomenting about Senator Cruz:
“Sen. Ted Cruz seldom overlooks a chance to be underhanded, and, sure enough, the Texas Republican led the effort to imbue (the) the hearing with the latest effort by the right to make White America fear Black America. Cruz attempted to tie Ketanji Brown Jackson, the first Black woman nominated to the high court, to the supposed menace of “critical race theory” — because, he said, this theory is taught at the private school where she serves on the board (and where she sent her daughters).
Cruz held up books he said the school has on reading lists, including “Stamped (for Kids): Racism, Antiracism and You,” by Ibram X. Kendi and Jason Reynolds that Cruz finds almost as offensive as the fact that Joe Biden had promised to nominate a Black woman.
So, New Republic’s Timothy Noah checked St. John’s School, the private school in Houston where Cruz sends his daughters. Guess what? It too has the same books, similar courses and a mission to attack racism. At the Cruz daughters’ school, the chair of the school’s committee on “diversity, equity, inclusion and belonging” speaks about teaching faculty and parents about “antiracism” and is considering an educational series on “cultural competency, race thought and inclusion.”
Of course, Cruz’s office didn’t respond to any requests for comment.
The Landscape
What was on the griddle for much of the hearings, of course, was the endless tug of war about promoting to the court nominees seen as leaning to one side or the other of our political divides; there was no other reason for Sen. Marsha Blackburn (R-Tenn.), for example, to press the nominee to define “what is a woman,” when transgender cases obviously are headed to the court.
We understand the politics better than the judicial norms. A group with whom I talk about the news unanimously saw these hearings as political grandstanding rather than any credible review of judicial qualifications.
But the subtext here was about Trust in the Supreme Court.
Because the court responds only to the cases brought by others and because the law sets up cases as adversarial debates, it is always squirrelly to determine whether these nine justices have sway over all areas of American life. But increasingly, the conservative majority is changing how the court responds to those areas in particular that touch on how we do our politics or pursue our lanes in the great cultural laws.
So, it was weird to hear Republicans hammering about judicial restraint even as the court acted on an emergency basis to issue what clearly would be perceived as a partisan win for one side — probably regardless of whether the majority had approved the map offered by the Republican legislature or the Democratic governor. At stake was the relevance of maps that would have created a district in a majority Black area.
Ruling that attempt to squash minority voters without explanation stretches newfound disdain for the expired Voting Rights Act and hardly seems to help towards any trust in the court.
In the same week, we heard the news that Justice Thomas’ wife, Ginni Thomas, had exchanged 29 messages with the White House to demand overturn of the election. Yet Justice Thomas, who was hospitalized with a mystery illness, has not recused himself from any cases touching on the election or Jan. 6, including one in which he was the only dissenting vote in a decision to require release of documents from the National Archives. “The disturbing revelations only deepen the threat her entanglements pose to the court’s legitimacy, The Washington Post editorialized.
By contrast, Republicans pushed to ensure that Judge Jackson would recuse herself from any decision involving an affirmative action case involving Harvard University, alma mater for four justices.
Again, forget the politics here. What does this do for the level of trust that the Republican senators said they were seeking in these court hearings.
Of course the court needs to continue find new rights. Otherwise, this nominee would not have been able to attend Harvard, voted, been on the bench at all.
Please, let’s match the actions with the words.
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