Supreme Court Watch

Graham and Inhofe voted from the cloakroom on Jackson nomination. They poked their heads out and voted thumbs down. They were not dressed in proper attire for Senate floor, which means wearing ties.

When Judge Ketanji Brown Jackson's confirmation vote occurred yesterday, it was done by voice vote, each senator voting aloud. This was a pretty cool moment as we heard each senator, in varying tones. Sen. Sinema, who we haven't heard much about recently, was notably enthusiastic.

It seemed like Sen. Rand Paul did not vote.  And, yes, he was the one who made people wait for a while (apparently about fifteen minutes):

Sen. Rand Paul (R-Ky.) remained noticeably absent. Once Paul surfaced after roughly 15 minutes, he cast his vote from the cloakroom, as well.

Senators were told ahead of time to be at their seats for this historical vote. So, it was bad enough for Paul to make everyone wait.  He could have, of course, not vote.  Recently, for a lower level position, some Democrat for whatever reason made the Senate wait much longer and in that case it was a 50-50 result.  Not sure the issue there, though that was not great. 

The worse thing, and this is for all three, is that the reason they didn't do so was some tie thing.  Sen. Graham had a tie another time that day. And, of course, if we want to be all "born yesterday" here, someone could have lent them a tie.  For the purpose of making a historical vote, someone could have given Paul a jacket, if necessary.  

The whole thing is a total asshole move on all there of their parts, and people have every right to assume it was intentional.  Sen. Lindsey Graham surely has it in him to be petty.  As to one comment that it is "white," well, the others (minus one) Republican are white.  They managed to vote on the floor.  Some of them are a tad racist.  So, no, it seems more of an asshole move.

There was ceremony with the President and Vice President outside the White House in honor of the confirmation with Justice-Elect Jackson herself giving some remarks.  Powerful moment that I bet the usual suspects would say reaffirms her "critical race theory" vibes.  Everyone can be a bit more blunt now.

There have been some controversy regarding the involvement of the White House in judicial confirmation ceremonies.  I want to draw some lines here. This sort of event is separate from the official swearing in (there are two oaths there) of Supreme Court justices.  That is the official start of their tenure.  It is sensible to not have that at the White House, which is how the last member of the Court handled things.

One more thing that I saw was that Judge Jackson will continue to recuse on the Court of Appeals, pending her final swearing in to the Supreme Court.  She will remain on the court, though I do not know what she will do there.  One useful thing there is that she would get paid. 

 

ETA: Of course, there is more material about "Justice-designate" (or "Justice-Elect")  Ketanji Brown Jackson.  

We have an op-ed about her first name (which in an "African" -- whatever that means -- language basically means "lovely" & so far, including her voice, humor, and more, it fits well).  

There is also a first official photo, which is nice, though the background is a bit weird. The photographer is a young black woman artist from the Bronx (does Sotomayor know her?).  As someone noted on Twitter, it is important (when possible) to give credit when credit is due for official photos. 

Another young black woman photographer (I sense a theme) was behind an iconic photo of her husband (and daughter) looking on with emotion and joy.   One profile page notes: "Most recently, SB received a grant from the Pulitzer Center to continue documenting a story about pregnancy and housing inequality during the coronavirus pandemic."

There is also support for her use of "methodology" to interpret as compared to some fixed single interpretative approach (textualism etc.).  As noted at an ACS page, this is both with precedent and a more appropriate/honest way of doing things.  I am not sure if her answer was complete enough -- it probably will do along with other things -- but some "just so" one is bad too.  Anyway, she genuflected to originalism, if probably in a confused way that was as  much about confirmation protocol.  

One law professor (Liz Sepper, who generously follows me on Twitter) recently noted on Twitter a cab driver asked her about the law.  She asked people to offer something.  I said that applying the law is usually a choice among various options, no matter how much some insist otherwise.  The choice is a human one that in our system depends in a significant part on who controls the nomination process and how they apply it.  

One more thing, for now.  The 53-47 vote avoided the stated possibility that we would need the vice president to break a tie. VP Harris recently did that (again) to move along an executive nominee.  It was done a few times to break tie votes there too.  

The idea it is unconstitutional, as compared to unfortunate policy, is to me silly.  Are you telling me it is clear that a vice president can vote for major policy (including I gather involving the Supreme Court), but not to break a tie for a minor appointment?  You can probably manage some argument here, but text, history, and basic principle/logic makes the idea stupid. 

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Meanwhile, Justice Thomas (who took part in last week's oral arguments remotely) seems to be feeling better. The fact he is up and about doesn't necessary say he is in perfect health or something. But, it is notable. And, the problems of only limited disclosure of his recent health issues remain. 

Justice Thomas is an honorary board member of an institution that handed out some kind of award.  That sort of thing normally is not really too notable, except that people might wish to know about it.  The difference here is that the honoree is running for an important political office involving the divided Senate, against one of the two people who arguably (at least according to tie-less Graham) is the difference of Jackson even being confirmed.   

Justice Thomas at the moment arguably might be a tad bit more careful about the appearance of impropriety given the issues involving his wife and all that.  Regardless, in this general time and environment, selfies, which easily can be made into political advertisements, with political candidates, especially at that level, to me is questionable.  There have been various other instances of Alito et. al. being at events of a partisan nature.  

I don't think this will make much of a difference, especially in scope, but it does have a sort of gratuitous nature.  On other matters, we might see soon how Justice Thomas acts regarding recusing in 1/6 matters, which ethicists and others have made into a sort of "red line" at this point.  I suppose some "line" might be drawn between the 14A, sec. 3 cases though at some point that gets a tad fine, especially with the texts we have from his wife.  

Think my basic concerns pretty on the money after checking out a few reactions on Twitter. Mark Sherman, a SCOTUS reporter says that it is "Very unusual to see a sitting justice pictured with a candidate for partisan political office."

Fix the Court suggests if it was some lower court judge, who have binding ethics rules, it would violate the current rules regarding avoiding political activity.  The Fox News link I added noted a campaign worker posted the photo.   [Last two paragraphs added; there were other "this is bad" comments from people in the know.]

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The next scheduled thing is a conference next Friday. Of note too, there are multiple executions (including a dubious one involving a woman) scheduled later this month as well.