CNN legal analyst Jeffrey Toobin took a break from punishing his colleagues by toggling his joystick at work on a Zoom call to opine on who he thinks President Joe Biden might nominate to the Supreme Court in the event Associate Justice Stephen Breyer steps down at the end of the term.
The media and other Democrat Party activists are re-upping the campaign they ran last Supreme Court term to bully Breyer into retiring. Because the Democrat Party’s policy failures at home and abroad have become so disastrous that not even the corrupt corporate media can cover them up anymore, the Republican Party has a chance to re-take control not just of the U.S. House, but also the U.S. Senate, which handles all presidential judicial nominations. As a result, getting Breyer to retire so Biden and Senate Democrats can select Breyer’s replacement has become something of an existential necessity for the left.
Toobin offers the conventional wisdom with his first two suggestions. Jackson and Kruger are both established judicial activists so political that radical group Demand Justice has them on their list of suggested Supreme Court nominees.
But Toobin’s “longshot” suggestion is silly.
Harris is simply not a serious pick. Remember that anyone Biden nominates would have to get through the Senate. Currently the Senate is tied with 50 Democrats and 50 Republicans. Harris, as the president of the Senate, is tasked with breaking tie votes.
It’s not entirely clear Harris would even be allowed to vote for her own nomination. But if she were allowed to do so, and she voted to confirm herself to the Supreme Court, that would leave a vacancy in the vice presidency, meaning the Democrats would no longer have a Senate majority since there would be no Democrat vice president to break a tie. The 25th Amendment holds that presidents may nominate a replacement in the event the vice presidency is vacated, one “who shall take office upon confirmation by a majority vote of both Houses of Congress.”
Would putting Harris on the Court be worth losing the Senate and having no leverage in who becomes vice president?
That’s where the argument gets really silly. If it wasn’t obvious to everyone before 2020, it is certainly difficult to hide now that Harris is not the most incandescent bulb in the intellectual chandelier. Her performance in the Kavanaugh trial, er, confirmation, did receive the accolades of sycophantic media fans, but was completely unbecoming. In one memorable scene, she attempted to lay a perjury trap against Kavanaugh relating to whether he had ever had a conversation on the Democrats’ Russia collusion hoax with anyone at one particular large law firm. He successfully avoided the trap, but it would not have been allowed in a court of law.
In her public appearances, Harris reminds observers of a completely unprepared high school student asked to answer a question. One recent interview included the following memorable line.
One media outlet mocked her comments in a rip-off of Saturday Night Live’s “Deep Thoughts with Jack Handey.”
And that’s the real reason Harris won’t be nominated. She simply isn’t up for the job. In 1970, President Richard Nixon nominated G. Harrold Carswell of the Fifth Circuit Court of Appeals in Florida for the seat left vacant by Abe Fortas’ resignation. Carswell’s Democrat opponents tried to castigate him as unqualified.
Conservative Sen. Roman Hruska of Nebraska replied, ”Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”
Even if it’s true that mediocrities deserve representation, some might argue that they got it when Associate Justice Sonia Sotomayor was confirmed to the Court under Obama. The New Republic’s legal affairs editor brutally questioned her capabilities ahead of Obama’s nomination of her in a blistering 2009 piece “The Case Against Sotomayor“:
They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”)
Rosen went on to say her opinions were “not especially clean or tight, and sometimes miss the forest for the trees” and “Some former clerks and prosecutors expressed concerns about her command of technical legal details.” That the criticisms came from the political left were indicative of concerns the liberal judicial movement had about whether she would be able to move the Supreme Court in the direction they preferred. Harris would likely only compound the problem.
Fortas, incidentally, resigned after he was unable to survive multiple conflict of interest scandals. President Lyndon B. Johnson had gotten Chief Justice Earl Warren to step down, to be replaced by Fortas. But the Senate blocked the elevation of the associate justice to chief. Nixon won the presidency, during which Fortas resigned from his associate justice seat. Nixon nominated Clement Haynsworth, who was not confirmed. The allegedly mediocre Carswell also was not confirmed. In the end, Nixon nominated Harry Blackmun. Blackmun was succeeded by Stephen Breyer.
There would be something humorous about the seat once denied to Carswell on the grounds he was mediocre going to Harris after all.