Fixing The United States Supreme Court

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The second and third weeks of November 2020 were among the most chaotic in our nation’s political history. Four days after Election Day, President Donald Trump and his Democratic opponent, Massachusetts Senator Elizabeth Warren, were each just slightly short of the magic number of 270 electoral votes. His total was 268 and hers was 266. The deciding votes would be cast by the four electors from New Hampshire. But the vote in that state was too close to call, and a recount was currently underway. Something very similar had occurred in 2000, when neither the Republican candidate, Texas Governor George W. Bush, nor Vice President Al Gore, the Democrat, had attained a majority of electoral votes. After multiple recounts in Florida, the one state whose outcome had been too close to call, it was left to the United States Supreme Court to settle the dispute.

Voting along party lines, the five Republican Justices outvoted the four Democrats, handing Bush the election.

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As the celebrated philosopher and New York Yankee great Yogi Berra once put it: it was déjà vu all over again. And sure enough, after five separate recounts, the lawyers on both sides agreed that there was no clear winner in New Hampshire.

Just as it was in 2000, the Republicans held a five to four majority on the Court. If they once again voted on party lines, President Trump would win reelection.

With the resignation of Anthony Kennedy in 2018, Clarence Thomas became the longest serving Republican on the Court. In addition, he was now the only sitting Justice who had cast his vote to affirm George W. Bush’s election to the presidency.

Thomas, who had always provided a reliable conservative vote, was, by far, the least talkative United States Supreme Court Justice in history, sometimes going for years without taking part in the questioning of the attorneys arguing their cases. Of course, his eight colleagues had no problem picking up the slack.

Questions arose as to why Thomas almost never participated in oral argumentation, which was a vital part of the Court’s decision-making process. Of course, one could surmise that not only did Justice Antonin Scalia speak for Justice Thomas, but that Thomas returned the favor by nearly always voting with Justice Scalia.

When asked why he did not participate in the Court’s oral argumentation, Thomas had a ready answer. As a child, he had had a serious speech impediment, and though it had long since vanished, he remained shy about speaking in public. Indeed, during his acrimonious nomination hearing before the Senate Judiciary Committee, he refused to answer any substantive questions about his legal views, claiming that the hearings amounted to “a high-tech lynching.”

Other than having attended a top law school, Thomas had no apparent qualifications to serve on the United States Supreme Court. And while he was a graduate of Yale Law School, he had been a beneficiary of affirmative action – a policy which he later strongly opposed – but evidently not enough to refuse to take full advantage.

Barely out of law school, he was appointed to a top post with the U.S. Department of Education and then, Chairman of the U.S. Equal Employment Opportunity Commission, despite having no discernable qualification for either position.

His next job was on the Federal Court of Appeals, to which he was appointed by President George H.W. Bush, the father of President George W. Bush. This Court, which ranked in importance just below the United States Supreme Court, sent dozens of its judges on to the top court.

Thomas, who had no prior legal experience, got to serve just fifteen months before being appointed to the United States Supreme Court by the first President Bush. Once again, Thomas found himself in a job for which he had no visible qualifications. Still, at least he knew to keep his mouth shut.

But Thomas, who surely would have been an automatic “yes” vote for Trump, would not be voting this time. On Memorial Day of 2020, tragedy would strike.

Having been warned repeatedly by his doctors about his sky-high cholesterol and his need to lose at least 50 pounds, Thomas asked himself why, for just one day, he could not cut loose and really enjoy himself.

He and his wife were at a backyard barbeque with dozens of close friends, and Thomas admitted more than once that just maybe he might have had a bit too much to eat and drink. When he complained about heart pain, an ambulance was rushed to the house. Sadly, Justice Thomas had passed away before it arrived.

President Trump, like the rest of the country, was shocked at the death of Clarence Thomas. He ordered the flags in front of all the federal buildings to be flown at half-staff for the next two weeks. Nearly all the Republican governors followed suit.

Trump was determined to get a quick confirmation as soon as he had selected a nominee to replace Justice Thomas. Two days after Justice Thomas’s death, a representative the Federalist Society -- which had provided the lists from which Trump had picked Neil Gorsuch and Brett Kavanaugh as future Justices – handed over an updated list of possible nominees.

Ostensibly, the candidates chosen by this group believed that, to the degree possible, United States Supreme Court justices should follow the intent of the founding fathers, and not attempt to legislate from the bench. But just somehow, the candidates they chose, nearly all ended up doing just that, and virtually always from a very conservative perspective.

In the meanwhile, Senate Majority Leader Mitch McConnell began preparing for a fast-track scheduling of meetings and hearings that needed to precede a vote. It was imperative that the Court – which was once again split between four Democrats and four Republicans – have its Republican majority quickly restored.

Of course, the Democrats immediately observed that just four years earlier, McConnell had insisted that, as a matter of principle, there could be no vote on a United States Supreme Court nomination even a year before the election of a new president. When asked for comments on his seeming hypocrisy, the Senator just smiled, occasionally adding, “No comment.”

The President glanced at the list of possible nominees and quickly realized that they were all white guys who had gone to top ten law schools. No stranger to the process of suing and being sued, Trump had always liked to boast about having highly credentialled attorneys working for him.

His unhappy experience with Brett Kavanaugh’s nomination process completely soured him on nominees who had left long paper trails. His gut told him he definitely needed to think outside of the box on this one.

His lawyer, former New York Mayor Rudy Giuliani, suggested aUnited States Supreme Court  candidate who immediately piqued the president’s interest. If his instinct was correct about this, not only would this candidate probably sail through the Senate, where the Republicans held a small majority of votes – not all of them entirely reliable – but that his nominating this new Justice would very likely help him in the November election.

Without consulting any other members of the White House staff or his cabinet, the president asked Giuliani and Chris Christie, both former federal prosecutors to conduct a deep background check on the prospective nominee.

Ten days later they reported that not only was  she a registered Republican since graduating from the Bronx High School of Science, but the president of the Young Republicans at Harvard, where she had a full scholarship. She was law review editor-in-chief at Harvard Law School and number one in her graduating class.

“She sounds smart! I love smart women! Maybe I shoudda made her my Attorney General instead of that wimp Sessions!”

Giuliani and Christie -- each of whom had each had openly campaigned for that appointment -- tried to overlook that remark. After all, that was water under the bridge. Giuliani quickly recovered.

“But wait! There’s more!“ Right out of law school she clerked for Justice Antonin Scalia! And for the last ten years, she’s been a partner at a top Wall Street law firm. In fact, she’s even argued before the United States  Supreme Court a couple of times.”

“Sounds great!” said Trump.

“It gets even better!” added Christie. “She not only contributes to Republican candidates, but does hundreds of hours of pro bono work, does not leave a paper trail, and is squeaky clean.”

“Are you ready to meet your nominee?” asked Giuliani.

“You mean she’s actually here?”

“You bet!” said Christie.

“I can’t wait to meet her! Invite her in!”

When Denise Smith walked into the Oval Office, the president did a double take. She was what the he would call “a real looker.” She could have won any of the beauty contests he used to run, hands down. She had a regal bearing, an incandescent smile, and when she shook hands with the president,  she had a cool firm grip and looked him right in the eye.

Before the handshake ended, it clearly was a done deal. “So, when can you start?” he asked.

Christie and Giuliani exchanged looks. If only they could have had this scene videotaped! It would have once and for all put the lie to one of the many unfair accusations leveled at the president. He hadn’t seemed to notice one very obvious detail about Ms. Smith. She was black.

She and the president chatted comfortably for the next half hour. He did most of the talking, not bothering to ask her many questions. When he did, she either very skillfully deflected them, sometimes with a question of her own, or else she just flashed her beautiful smile.

As he gazed at her, the president tried to recall the opening lines from old song of The Eagles – “Your Lyin’ Eyes.” They came to him instantly:

City girls just seem to find out early

How to open door with just a smile

As Ms. Smith was about to leave, he reiterated that she was his United States Supreme Court nominee: the job was definitely hers. Did she need some time to think over his offer?

“Mr. President: I can start right now.”

After she left, Giuliani and Christie eagerly awaited the president’s verdict. While it was clear the two of them hit it off, there was also no question that Denise Smith was one cool customer.

“So whadda you think?” asked Christie.

With a wide grin, Trump had a ready answer: “She sure ain’t no dog! Far from it!”

He paused for a few seconds, as a leering grin spread across his face.  “Yuh know, I wouldn’t mind…”

“Don’t even think about it!” warned Christie.

When he looked to Giuliani for confirmation, his fellow former federal prosecutor just shrugged and then smiled.

Exactly three weeks after Clarence Thomas’s sudden death, the President would reveal his United States Supreme Court choice in the White House Rose Garden. Only Fox News and a few other favored media outlets were invited.

Trump even mentioned during his introduction, “If you think that Clarence didn’t say much, compared to Denise he was a regular chatterbox.” The reporters laughed politely, but they had been hoping to learn something more newsworthy  about his Court nominee.

She agreed to take a few questions, but politely declined to give substantive answers. Throughout the press conference she smiled a great deal, while providing the photographers with some great phot-ops.

That evening Fox reported that President Trump had certainly “hit it out of the park.” Denise Smith was brilliant, highly successful, beautiful – and black! In one brilliant move, the president had scored points with two extremely problematic voting groups – women and blacks.

During the next few weeks she met privately with individual senators and sometimes with groups of three or four. She was always gracious, and happily discussed various legal issues, but never took a stand on any one of them. Although several Democratic senators expressed frustration with her refusal to be drawn out on these issues, they fully agreed that she was highly qualified to sit on the Court.

Denise Smith’s United States Supreme Court nomination sailed through the Senate, with the entire Republican conference as well as a dozen Democrats voting for her. When the fall term began, she took her seat along with the other eight justices.

By Labor Day, Trump, who had been ten points behind Warren in the polls, pulled almost even with her. It was a horse race all the way to Election Day, when it appeared to be a dead heat. If nothing else, he was determined to keep calling her “Pocahontas” until the bitter end.

Almost everyone expected a very close election, but no one expected it to be this close. A day after the election, Trump led with 268 electoral votes with Warren just behind with 266. With 270 votes needed to win, whoever took New Hampshire’s four votes would be the next president.

The initial results, reported two days after Election Day had Warren ahead by just 23 votes. Trump’s campaign demanded a recount that was completed two days later, showing Trump ahead by 8 votes. He immediately proclaimed victory. But Warren’s campaign demanded a second recount, that had Trump winning by a single vote. Still further checking then put Warren ahead by four votes.

Finally, both sides agreed to ask the United States Supreme Court to determine which candidate had won. This certainly did seem to be the election of 2000 all over again.

Under extreme pressure to settle the election as quickly as possible, the Court put aside all its other scheduled business. Although there was no shortage of arguments put fourth why one candidate or the other deserved to win, the justices understood that their final decision would be based on their political allegiances. If nothing else, however, it would be quite unseemly if they simply cast their votes without at least going through the motions of a judicial discussion.

The math was simple. There were five Republicans and four Democrats. Throughout the three-day debate, United States Supreme Court Justice Denise Smith remained silent. She listened politely, took notes, nodded often, and smiled occasionally. And unlike the Justice she replaced, she did not doze off even once.

Finally, they were ready to vote. Chief Justice John Roberts distributed ballots. After they were handed back to him he asked Ruth Bader Ginsburg – the longest serving Democrat, to join him in counting the ballots. A minute later they nodded and the Chief Justice announced that by a vote of five to four the United States Supreme Court declared the winner of the election to be Senator Elizabeth Warren.

Only three of the United States Supreme Court justices had known the outcome before it was announced. The other six sat there in stunned silence. Looking around the room, Justice Ginsburg then suggested that the Court bow to an old tradition. “We could send out white smoke to let the world know that a new pope has been elected.”

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