If Supreme Court Justice Amy Coney Barrett was sincerely trying to convince one and all that the nation’s highest tribunal “is not comprised of a bunch of partisan hacks,” she sure picked a peculiar venue to make her case.
Barrett, the newest member of the high court, made her feelings known during an address Sunday at the McConnell Center at the University of Louisville, a leadership program founded and named after Senate Republican Leader Mitch McConnell, who, ironically, is as responsible for the politicization of the federal judiciary as anyone extent.
With the great man himself beaming in attendance, Barrett insisted that the nine justices must remain “hyper vigilant to make sure they’re not letting personal biases creep into their decisions, since judges are people, too.”
“To say the court’s reasoning is flawed is different from saying the court is acting in a partisan manner,” Barrett said. “I think we need to evaluate what the court is doing on its own terms.”
The NKyTribune’s Washington columnist Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.comMind you, her remarks came just 10 days after the court issued its most recent political and partisan decision, refusing to block a recently passed Texas law that prohibits abortions once a physician detects a fetus’s heart activity – usually around six weeks after a woman becomes pregnant.
That decision obviously runs counter to the famous 1972 high court decision in Roe v. Wade.
But the Texas law extends the outrage by establishing a bounty system, empowering private citizens to file lawsuits in state court against anyone involved in the performance of an abortion, thus creating an American Stasi.
Taking the court “on its own terms,” that obviously is a partisan hack decision.
Barrett’s observations are either incredibly naïve or hypocritical, you choose. They are certainly self-serving as the high court lays the groundwork for increasingly political decision-making with a right-wing bent, thanks in large measure to McConnell’s antics.
Since his early days on the national political scene almost 37 years ago, McConnell has issued few objections to claims he has endeavored to essentially make the federal judiciary – one of the three branches of government – an arm of the Republican National Committee.
One tale tells the story.
In 1976, during the waning days of Republican President Gerald Ford’s administration, Jefferson Circuit Judge Richard Revell, a popular and competent jurist and a Republican, was nominated for a federal district judgeship in the western district of Kentucky. It was essentially blocked by Sen. Wendell Ford, D-Owensboro, who bet, correctly, that Ford would lose to Jimmy Carter, the Democrat in the fall election, thus providing an opening for a nominee of his party.
Ford’s move proved unpopular, especially in vote-rich Louisville, so he and his colleague, Sen. Walter “Dee’’ Huddleston, D-Elizabethtown, formed a Judicial Nominating Commission, consisting of nine members – three from Ford, three from Huddleston and three from the Kentucky Bar Association – to provide names to fill vacancies on the federal bench. As part of the deal, to remove politics from the process as much as possible, Ford and Huddleston vowed to support the commission’s choice, regardless of party.
And it worked well. The best example was in Northern Kentucky in 1979. For years, the presiding judge in U.S. District Court, Covington, was Mac Swinford of Cynthiana. He died in 1975 and was succeeded by Judge Eugene Siler Jr., of London, a Republican and an outstanding judge who wanted to exit the Covington docket to understandably avoid his three-hour commute to the courthouse.
A new judgeship was created and the Judicial Nominating Committee recommended three candidates – Covington attorney Dick Nelson, a Democrat, Fayette Circuit Judge L.T. Grant, a Democrat, and Newport attorney William O. Bertelsman, a Republican.
There was discussion about Grant possibly moving from Lexington to Northern Kentucky. That idea was eventually scrapped and Carter, a Democrat, and Ford and Huddleston, both Democrats, threw their support to Bertelsman, who has enjoyed a long and spectacular career (although he went a little overboard recently, likening Gov. Andy Beshear’s COVID-19 mask-mandate without legislative support to “tyranny,” although I’ve been described at times as having gone overboard myself).
The commission even worked to McConnell’s advantage. Shortly after assuming office in 1985, he urged Louisville attorney Charles R. Simpson III to apply for a federal judgeship open in Owensboro, Ford’s hometown. Simpson had worked for McConnell when he was the Jefferson County judge-executive.
Simpson, a Republican, was one of five candidates selected by the commission. He was nominated by President Ronald Reagan, a Republican, in 1986 and continues to serve on senior status.
Regardless, McConnell ultimately scuttled the whole, worthy, non-partisan process without providing a decent rationale, leaving anyone with sense to conclude that he was simply exhibiting the thirst for political power for which he is universally recognized.
His philosophy, as it is for everything, is let the politics in. Bow to the spoils system. Take a perfectly sound methodology for picking the best candidate for an important federal office and shove it aside, qualifications be damned.
In the ensuing years, McConnell has seen to the appointments of, among others, his special counsel during his time as judge-executive, John Heyburn, the son of fellow U.S. Sen. Jim Bunning, R-Ft. Thomas, David Bunning, and former girlfriend Karen Caldwell, to the federal bench. No reason to question the abilities of the three, but it’s obvious they benefitted from their standing with McConnell and didn’t have to go through their paces with the Judicial Nominating Commission, which he dissolved.
McConnell has, of course, assumed a similar attitude toward Supreme Court appointments. His handling of the nomination, and subsequent confirmation of Justice Brett Kavanaugh, is a good example.
Kavanaugh was a purely political appointment to the high court by President Donald J. Trump, part of his campaign to pack the judiciary with Federalist Society devotees, which should tell you all you need to know about it right there, but we’ll go on. He rose to prominence working with Ken Starr in the Office of Independent Counsel, assisting in the various investigations concerning Democratic President Bill Clinton, a job that included authoring the report that called for Clinton’s impeachment.
Kavanaugh worked for former Republican President George W. Bush in the 2000 campaign, playing a key role in the Florida recount battle, joining the administration as White House staff secretary in 2003 and working in behalf of the administration’s judicial nominees. His reward for all that political work? A nomination and confirmation to the U.S. Court of Appeals for the District of Columbia in 2003.
Now, let’s be clear – it’s not unusual for politicians to serve on the U.S. Supreme Court, although Kavanaugh’s background appears to be oilier than the norm. Earl Warren, the former Republican governor of California, served as Chief Justice from 1953 to 1969. William Howard Taft, the nation’s 27th president, was the Chief Justice after leaving the White House from 1921 to 1930. All it proves is that politics has long held a prominent role in the Supreme Court despite Barrett’s understanding otherwise.
Of course McConnell has taken politics a little further than most. When Kavanaugh’s nomination was nearly derailed by accusations of sexual misconduct, McConnell called on the FBI to investigate. The result was a snow job, with hardly any work done, that McConnell refused to make public. Kavanaugh was confirmed 51-49.
The story isn’t over. Anyone who remembers the fight over the rush to confirm Barrett as the successor to Ruth Bader Ginsberg and the underhanded scheming to deny Merrick Garland a seat on the nation’s highest court realizes it’s a panel swirling in politics.
Gee, how could anyone get the idea the U.S. Supreme Court is “a bunch of political hacks.”
