A Supremer Court?

This past week we were treated to, or endured, depending on your point of view, the Senate confirmation hearing for Judge Ketanji Brown Jackson, President Biden’s nominee for the U.S. Supreme Court. We watched her thoughtful answers to intricate questions of law and her grace in dealing with the ridiculous queries of some senators. There is no doubt she is qualified for the seat.

I want to call out one qualification in particular: Harvard Law School, of which she is a graduate. Before she was chosen by the President, there were some who argued that the Court sorely needed someone who didn’t have an Ivy League background, like Harvard was almost a disqualification. Talk about reverse discrimination! Hey, if you had a complicated heart condition and needed a crack surgeon, and your life was on the line, you would likely choose a doc with a gold-standard medical education. This field is law, and for the Supreme Court, why shouldn’t we have someone who made it through Professor Kingsfield’s contracts course? (Some of you may have to look that up).

Qualified as she is, most observers agree that Judge Jackson’s elevation to the court won’t change its perceived ideological imbalance. Let’s not forget that President Obama’s choice for the Supreme Court was literally stolen from him through the use, or misuse, of the Senate rules. His nominee would likely have relieved some of the current imbalance. Adding members to the Court is no help. Suppose there were 15 justices and 12 of them were chosen by Presidents from one or the other party, depending on when justices retired or died?

The standards for Court nominees have risen since our country was founded. Some justices never went to law school, and a number of rulings in history were pretty unfortunate. But now we have a sitting justice whose wife lobbied to keep President Biden from taking office. If that justice were sitting on a lower court, canons of ethics would have forced him to recuse himself on questions related to the presidential election. But the Supreme Court has no such code. We have to depend on a justice’s conscience.

I believe Congress could address some of these issues by codifying deadlines for seating a Court nominee in election years, setting a mandatory retirement age for justices, or even creating that code of ethics. But there is no Supremer Court than the one we’ve got, so we have to get under the hood, as the late Ross Perot might say, and see if we can make a few adjustments.