{"id":13812,"date":"2018-09-30T23:31:06","date_gmt":"2018-09-30T23:31:06","guid":{"rendered":"http:\/\/www.lifeandnews.com\/articles\/?p=13812"},"modified":"2018-09-30T23:31:06","modified_gmt":"2018-09-30T23:31:06","slug":"on-the-supreme-court-difficult-nominations-have-led-to-historical-injustices","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/on-the-supreme-court-difficult-nominations-have-led-to-historical-injustices\/","title":{"rendered":"On the Supreme Court, difficult nominations have led to historical injustices"},"content":{"rendered":"

Calvin Schermerhorn<\/a>, Arizona State University<\/a><\/em><\/span><\/p>\n

Far from being unusual, the hurried and partisan Supreme Court confirmation process for Brett Kavanaugh<\/a> mirrors several notable examples of similarly politicized confirmations in U.S. history. <\/p>\n

Those conflicts, which ultimately placed justices on the court, yielded some of the most damaging civil rights decisions in our nation\u2019s history.<\/p>\n

Unlike any other branch of government, Supreme Court justices<\/a> do not have to face voters at the polls. They have no term limits. Yet the high court is the final arbiter of constitutional rights and protections.<\/p>\n

Controversial appointees who were rammed through hearings, or political careerists nominated for strategic reasons and confirmed despite scant vetting, handed down decisions that expanded slavery and rolled back civil rights.<\/p>\n

Bad processes do not by themselves yield bad decisions. There have also been thinly vetted justices who have protected and extended civil rights, but such cases are in a minority.<\/p>\n

Of course, all Supreme Court nominations are political because they embody the strategic priorities of the president<\/a>. And the required Senate confirmation of a nominee may well be a \u201cvapid and hollow charade<\/a>,\u201d in Justice Elena Kagan\u2019s words, since partisan support matters over merit.<\/p>\n

But as history shows, judicious confirmation hearings are vital to vetting a lifetime appointment that can affect citizens\u2019 right to vote, access to courts, or the limits of presidential power.<\/p>\n

\n \"\"<\/a>
\n Portrait of Supreme Court Justice Roger B. Taney by George P.A. Healy.<\/span>
\n The Collection of the Supreme Court of the United States<\/a><\/span>
\n <\/figcaption><\/figure>\n

Bad process, bad decisions<\/h2>\n

Roger B. Taney<\/a> was a partisan warrior who helped President Andrew Jackson kill the Bank of the United States<\/a> by illegally draining its funds. Congress refused to confirm Taney<\/a> as treasury secretary and censured Jackson. <\/p>\n

So Jackson named Taney<\/a> to the Supreme Court. The Senate refused<\/a> to confirm him. The next year, after Jackson got a Democratic Senate, he renominated him, this time as chief justice. Taney was pushed hurriedly through confirmation. <\/p>\n

The Taney Court was staunchly pro-slavery<\/a>, rejecting states\u2019 rights when Northerners asserted them to oppose slavery.<\/p>\n

Taney\u2019s most sweeping pro-slavery decision in Dred Scott v. Sandford<\/a> in 1857 held that African-Americans \u201chad no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit<\/a>.\u201d The decision ruled that Congress had no power to prohibit slavery in any U.S. territory. Dred Scott is widely considered to be one of the worst decisions ever made by the court. <\/p>\n

A critical time<\/h2>\n

During the Civil War, Abraham Lincoln was able to replace the Taney Court with corporation-friendly Republicans like Samuel F. Miller<\/a> of Iowa, whom he nominated in 1862. Lincoln\u2019s court strategy<\/a> was to appoint Republicans who would endorse presidential powers in a war to save the Union.<\/p>\n

Like Taney, Miller had owned slaves but freed them<\/a>. And he was a party loyalist. As Miller\u2019s biographer claims, he \u201csought results first and then found the arguments to justify them<\/a>.\u201d<\/p>\n

Miller\u2019s appointment came just as Lincoln was contemplating the Emancipation Proclamation<\/a>. Lincoln could have asked Miller his views on the scope of black freedom, but he never did. He never even met Miller. And with no opposition in Congress, the Senate confirmed Miller<\/a> in just hours.<\/p>\n

Miller\u2019s appointment may have been shrewd politics but it hollowed out the Civil War\u2019s crowning achievement, the abolition of slavery and constitutional protections for African-American citizenship, including equal protection of the laws and the right to vote.<\/p>\n

It was Miller\u2019s majority ruling in the 5-4 Slaughterhouse Cases<\/a> in 1873 that had the effect of limiting civil rights protections for African-Americans under the 14th Amendment, which extended citizenship to African-Americans and forbade states to deny them equal protection of the laws. The ruling in effect gave states sole power over areas of citizenship not explicitly covered in the federal Constitution. That, in turn, ultimately led to the growth of racist Jim Crow laws<\/a> in states.<\/p>\n

\n \"\"
\n Justice Joseph P. Bradley, appointed by Ulysses S. Grant.<\/span>
\n Supreme Court<\/span><\/span>
\n <\/figcaption><\/figure>\n

President Ulysses Grant\u2019s two nominees were also pushed through hastily and had an oversized impact on civil rights.<\/p>\n

Those appointments \u2013 conservative pro-business Republican Joseph P. Bradley<\/a> and political hack Morrison Waite<\/a> \u2013 unwittingly undermined Grant\u2019s own Justice Department\u2019s civil rights enforcement.<\/p>\n

In 1870 Grant appointed Bradley specifically to help business interests<\/a> concerned about recent decisions<\/a> that they believed harmed them. Bradley faced scant opposition from a majority-Republican Senate in bed with railroad and other corporate interests.<\/p>\n

Four years later, Grant picked Waite, a crony of Grant\u2019s Ohio friends, who had zero judicial experience. Called a \u201cnational nonentity<\/a>\u201d by a court historian, Waite\u2019s appointment surprised everyone, including Waite. The Senate confirmed him without debate.<\/p>\n

The unintended consequences of these two overtly political nominations became clear in U.S. v. Cruikshank<\/a>, an 1876 court decision.<\/p>\n

In April 1873, up to 150 African-Americans were murdered by whites in a conflict over two competing Louisiana governments. Among those whites was William Cruikshank. <\/p>\n

Cruikshank and others who participated in the massacre were charged and convicted in federal court of civil rights violations under the Enforcement Act of 1870. That act made it a federal crime to violate civil rights and was passed with the intention of putting teeth in the 14th Amendment<\/a>, which guaranteed equal protection of the laws and due process. The case considered by the court was an appeal of those initial convictions. <\/p>\n

Justice Waite ruled that the 14th Amendment\u2019s civil rights provisions, including the equal protections of the laws and right to due process, did not apply to the victims of the Colfax Massacre. <\/p>\n

Justice Bradley concurred in the ruling, clearing Cruikshank. Indeed, Bradley declared that none of the Colfax Massacre defendants were alleged to have \u201ccommitted the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude<\/a>.\u201d <\/p>\n

Bradley and Waite\u2019s responses constituted willful blindness to a naked act of racial terrorism. And these decisions gutted the 14th Amendment\u2019s civil rights provisions, leading to the swift and violent rise of Jim Crow<\/a>. <\/p>\n

More damage<\/h2>\n

Bradley went on to rule in 1883 that the Civil Rights Act of 1875<\/a>, which outlawed racial discrimination in public facilities, was unconstitutional. He did this at a time when blacks were being denied the right to vote, barred from businesses and murdered with impunity. Bradley tutted that with his ruling a black citizen \u201cceases to be the special favorite of the laws<\/a>.\u201d And the law ended protection for African-Americans from segregation in schools, theaters and even cemeteries.<\/p>\n

It would be 74 years before Congress passed another civil rights act. <\/p>\n

Not all justices involved in partisan nominations, or who were poorly vetted, handed down dreadful rulings. <\/p>\n

Louis D. Brandeis\u2019 nomination in 1916 led to a bitter partisan brawl infused with anti-Semitism. One witness at his confirmation accused him of \u201cinfidelity,\u201d and another characterized Brandeis as \u201cduplicitous\u201d<\/a>. <\/p>\n

\n \"\"<\/a>
\n Louis Brandeis won a bitter nomination fight to the Supreme Court.<\/span>
\n Boston Journal, June 2, 1916<\/span><\/span>
\n <\/figcaption><\/figure>\n

Yet Brandeis became one of the nation\u2019s most renowned Supreme Court justices, standing up for free speech in Whitney v. California<\/a> in 1927 and dissenting in Olmstead v. United States<\/a> the next year against warrantless wiretapping.<\/p>\n

Harold H. Burton was a surprise nomination when Democrat Harry Truman nominated the Republican senator from Ohio in 1945. The Senate dispensed with hearings and confirmed Burton without debate. But Burton defied expectations, shaping the Supreme Court\u2019s landmark Brown v. Board of Education of Topeka<\/a> (1954) ruling that desegregated schools and overturned the Jim Crow doctrine of \u201cseparate but equal.\u201d<\/p>\n

Back to the 19th century<\/h2>\n

More recently, contested nominations have revived the 19th-century practice of ramming through partisans whose decisions undermine civil rights<\/a>.<\/p>\n

The 1991 Clarence Thomas nomination evokes that legacy. With a thin resume, partisan credentials, and his nomination hastily pushed through by George H. W. Bush\u2019s administration, Thomas won a lifetime appointment by a two-vote margin after an acrimonious hearing involving his alleged sexual harrassment.<\/p>\n

Justice Thomas is arguably among the most conservative justices<\/a>. He joined Chief Justice John Roberts in the landmark 5-4 Shelby County v. Holder<\/a> decision gutting the Voting Rights Act of 1965. <\/p>\n

Brett Kavanaugh\u2019s nomination, like that of Morrison Waite, Joseph P. Bradley and Roger B. Taney, has been rushed. A partisan warrior, he has been hastily advanced, with the majority of his papers withheld<\/a> and sexual assault allegations overtaking his hearings. <\/p>\n

As American history has shown, this process comes with profound risks.\"The<\/p>\n

Calvin Schermerhorn<\/a>, Professor of History, Arizona State University<\/a><\/em><\/span><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Calvin Schermerhorn, Arizona State University Far from being unusual, the hurried and partisan Supreme Court confirmation process for Brett Kavanaugh mirrors several notable examples of similarly politicized confirmations in U.S. history. Those conflicts, which ultimately placed justices on the court, yielded some of the most damaging civil rights decisions in our nation\u2019s history. Unlike any […]<\/p>\n","protected":false},"author":44,"featured_media":13808,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[991,500,1538,708,1666],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/13812"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=13812"}],"version-history":[{"count":1,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/13812\/revisions"}],"predecessor-version":[{"id":13813,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/13812\/revisions\/13813"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/13808"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=13812"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=13812"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=13812"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}