We’ve all been told that judges are supposed to be nonpartisan and objective in their decisions, basing their opinions on legal precedent (a.k.a. applicable law) as it currently exists. That applies to the U.S. Supreme Court down to the lower courts, including the county Court of Common Pleas and the lowest rung of the Pennsylvania ladder, Magisterial District Judges, numbering four in my mostly rural county and into the dozens in high-population counties like Allegheny and Delaware.
You’re supposed to campaign on credentials proving you are qualified, and you aren’t supposed to say too much that might be regarded as political or suggest any prejudices on legal matters that might come before you. Then again, being branded Republican or Democrat seem to be all partisans need to know anymore. Expertise, experience in the courtroom and judicial temperament (later defined) are secondary. The safest campaign pledge is the old reliable boast that you are tough on crime, whatever that means. Perhaps the more important claim is you’ll be fair, impartial and nonpartisan. Even though you’d expect that to be at the top of the qualities we’d want in our courts of criminal and civil law, few really care about that distinction anymore. The only time we want a judge to be fair is when we’re the ones standing trial or relying on a favorable court decision in a civil or criminal case. What we really want from judges, whatever their realm, is that they are liberal, conservative, Republican or Democrat. We want them to be like us, sharing our opinions, convictions and, regrettably, prejudices.
Issues like the death penalty and abortion are among those personal convictions that often apply and brand a judicial candidate as conservative or liberal. I contend that claims of being fair and open-minded are more often viewed within the definition of liberalism in these times. For many, it seems, liberalism implies weakness and evidence of being a denizen of the so-called “woke mob,” archvillains of many conservative candidates running for governor and senate in the impending spring primaries. The whole “woke” thing would require an essay in itself, but generally it seems to be an obsession with anything reflecting even a trace of biases like racism, misogynism and homophobia – all fodder for cancel culture. An example is woke education that would accent slavery as a prelude to the Civil War or make too big a deal about how Native Americans were treated during America’s westward expansion. I guess you might call it caring too much for the downtrodden and for some on the far right is viewed as unpatriotic— as in the belief proclaimed among conservatives that our children should only be taught what is good about America.
Past judicial decisions and opinions are certainly factors one is expected to apply when voting for state and federal court judges. The problem is, if you’re like me, you don’t know who these people listed on our ballots as judicial candidates are and, most importantly, how good of a judge they have been or will be. We have to rely on others, their peers, to tell us how qualified these candidates are. They don’t make a lot of waves and raves following the letter of the law. Judges are most likely remembered, positively or negatively, for high profiled cases they may have tried or highly publicized cases they may have prosecuted or clients they may represented as defense attorneys in the previous lives as lawyers.
Obviously, this weird process in getting judges appointed to the Supreme Court once again raises its ugly head as Republicans use Judge Ketanji Brown Jackson as a dartboard for campaign issues in hopes that some of the darts might find the bull’s-eye. Democrats were also hard on some of Trump’s court nominees, wandering in foul territory on occasion, but there have also been legitimate appraisals of personal behavior in the past as with Judge Brett Kavanaugh, who blamed his morality lapses on his love for beer. I wonder how much chance Judge Jackson would have had for confirmation if such sordid revelations from her past been aired?
By the way, I understand Judge Clarence Thomas made it to the Supreme Court despite reportedly performing in blackface as a young man. Sorry. Couldn’t pass that one up. Judge Thomas was the subject of his own drama before his confirmation 20 years ago with Anita Hill’s accusations of sexual harassment. She was grilled as if she, not Thomas, was the offender, and one of the grillers was Sen. Joe Biden. At least it was a bipartisan grilling. One of the most quoted grillers was a Pennsylvania Republican, Sen. Arlen Specter.
Now we find veteran Supreme Court Justice Thomas in the news again due to incriminating texts from his wife, Ginni, avid Trump supporter and Republican activist, advising Trump’s Chief of Staff Mark Meadows that they should unleash unfounded conspiracy theories as weapons to overturn Biden’s election victory. It was an issue that went before the Supreme Court where Thomas was the only dissenting vote when the high court refused an attempt to disqualify certain mail-in ballots which overwhelmingly supported Biden in the presidential election.
You can’t make this stuff up. Well, I guess you can if you want to ignore reality.
A Job Interview That Has Reduced Some to Tears
This latest interrogation of a Supreme Court nominee makes me wonder how willing other candidates will be to face the heat the next time a seat becomes vacant on the U.S. Supreme Court. Talk about your brutal job interviews! Will anyone, no matter how stellar their record, want to be picked apart like they’ve been doing to Judge Jackson?
I believe Jackson is the first to have served as a public defender in her past life as an attorney— a black woman working her way up— and the idea the inquisitors would smear her by attaching her to the same sins as some of her unsavory clients would be laughable if it weren’t so despicable. Lindsey Graham is an attorney, and he should know that sentencing guidelines aren’t a measure a judge’s endorsement of a convicted defendant’s behavior. To even hint that a judge is an enabler of pedophiles is an insult to a judicial candidate with her record. It’s not a whole lot of fun for her family and friends either.
The bottom line is that Senate Republicans are falsely portraying Judge Jackson solely because she is a Democratic appointee. She is not hostile toward law enforcement, despite comments from her questioners that she is and has proudly mentioned a brother and two uncles who have made careers in law enforcement. She is not unpatriotic, as has also been suggested, having described being born in the United States as “my greatest blessing.” She has rendered no opinions about the teaching of gender identity or critical race theory to school children despite Republican observations that she is a member of the woke mob. She is obviously an American citizen with her own opinions, but she is also a veteran judge who is greatly admired as a model of judicial temperament, which is an asset we expect of our finest jurists wherever they hold court.
Judicial temperament, according to the American Bar Association, exudes the qualities of “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.” All seem to be exhibited in the character and record of Ketanji Brown Jackson. If only we could expect some of the same from Senators Lindsey Graham, Ted Cruz and Josh Hawley, this Senate confirmation (or lack thereof) would not be the painful process it has become.
Sadly, it has become what we could have predicted it would be.