The Judge Who’s a First-Class Payne in the Tuchis #🟦

(Many thanks to Alan Wald, one of my oldest, wittiest and easily, most literate friends, for bringing Judge Robert E. Payne and the case he presided over, to my attention.

First the facts, then the commentary:

    Federal Judge Robert E. Payne

THE FACTS: This past Wednesday, May 10, 2023, Judge Robert E. Payne of the Federal District Court in Richmond, Virginia (the home of my father Henry’s alma mater), handed down a 71-page ruling striking down federal laws blocking handgun sales to buyers over the age 18 and under 21. In the case, John Corey Fraser et al v Bureau of Alcohol, Tobacco, Firearms and Explosives et al, Judge Payne, who was appointed to the federal bench by President George H.W. Bush in 1991, ruled that statutes and regulations put in place over the past several decades to enforce age requirements on sales of handguns, like the semiautomatic Glock-style pistol, by federally licensed weapons dealers were “not consistent with our nation’s history and tradition” and therefore could not stand. A citizen’s Second Amendment rights do not “vest at age 21,” he added.

In his ruling, Judge Payne repeatedly cited the majority opinion in the landmark case New York State Rifle and Pistol Association v. Bruen which, employing a broad interpretation of the Second Amendment, struck down a New York State law that put tight limits on carrying guns outside the home. At the time when this ruling was handed down (June 2022), legal commentators, including the New York Times’ Adam Liptak noted that “The decision is expected to spur a wave of lawsuits seeking to loosen existing state and federal restrictions and will force five states — California, Hawaii, Maryland, Massachusetts and New Jersey, home to a quarter of all Americans — to rewrite their laws.”

The Justice Department is expected to appeal Judge Payne’s ruling in Virginia, which, should it stand, would have a significant, if limited, impact on firearms purchases. The decision, which would not affect state age limits, will take effect when the judge issues his final order, which is expected in the next few weeks.

THE COMMENTARY: In my opinion Judge Payne’s ruling ranks right up there with Mr. Chief Justice Roger B. Taney’s  1857 Dred Scott decision (which a future Chief Justice, Chas. Evans Hughes, would characterize as the court’s "great self-inflicted wound”); Justice Anthony Kennedy’s majority decision in the Citizens United case (which essentially opened the legal floodgates to all the corporate billions being contributed to political campaigns); and Justice Samuel Alito’s delivery of the Dobbs v Jackson decision (which overturned Roe v Wade) as one of the very worst, most short-sighted and asinine judicial renderings in all American history. Reading through Judge Payne’s decision, the one thing that sticks with you is his justification for ruling against the plaintiffs . . . about their position “not [being] consistent with our nation’s history and tradition.” In other words, what Payne was basing his decision on was a stagnant, motionless Constitution; one virtually immune from - and uncaring of - any historic change or growth made manifest through the reality of time and tide. His rendering of the 2nd Amendment (“The right of the people to keep and bear arms shall not be infringed”) heeds only its first fourteen words, and virtually nothing of what follows (i.e. “. . . a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”)

Taking a single phrase from the U.S. Constitution without regards to a couple of centuries of court cases and decisions (“commentaries”) is akin to reading the Old Testament (also known as “The Hebrew Bible”) without engaging in the study of the so-called “Oral tradition.” Were it not for this oral tradition - debates, arguments and the parsing of both history and language of the Bible, we’d be stuck with such literal renderings as the so-called “Stubborn and rebellious child” (בֵּ֚ן סוֹרֵ֣ר וּמוֹרֶ֔ה) law (Deut. 21:18-21) which condemns an unruly child ”(one who will hearken not to the voice of its mother or father”) to death by stoning at the hands of the community elders.  Had not this section of the Bible been subjected to centuries of debate and commentary, all those youngsters who,  at one time or another, mouthed off to their parents, would have been sentenced to death.  Instead, centuries of sages turned the literal words into a frightful warning . . . thus abnegating a heartless punishment.

Imagine, if you will, if Judge Payne’s obiter dictum about “not [being] consistent with our nation’s history and tradition” were to be taken literally in a wide range of legal proceedings; to what might it lead?

(And here we return to my friend Alan Wald’s trenchant thoughts for which, once again, great thanks are proffered:

Next, will it be the re-imposition of slavery  because ending slavery is not consistent with our nation’s history and tradition” 

Or re-starting the Holocaust, because it was part of the German nation’s history and tradition

Or the paddling of elementary school kids by teachers in the cloak room:, for this too is part of our nation’s history and tradition.

How about giving smallpox and VD to the First Peoples of America by the first white settlers in America  which is part of many nation’s history and tradition?

Or taking away the right to vote from African Americans and women because this right is largely inconsistent with our nation’s history and tradition?

Feel free to add your own “How’s ‘bout’ to this list.

There is an old rabbinic tradition of never ending a sermon (a drosh) without a dash of uplifting compassion (n’chempta). Not wishing to ignore the sage advise of my early masters, I shall heed their admonition:

This past week, the U.S. Supreme Court, in the case Santos-Zacaria AKA Santos-Sacarias v. Garland, unanimously  passed a decision that makes history not just for its impact on the law — but for its language about transgender people and non-citizens living in the United States.

Every judge — including the most conservative on the court — agreed with the court's ruling, and traditionally right-leaning justices co-signed the official opinion of the court, which uses proper she/her pronouns to describe a transgender woman who fled Guatemala after being assaulted and persecuted on the basis of her gender identity and sexual orientation.

The opinion also referred to the petitioner as a non-citizen, rather than an "illegal alien" (a dehumanizing term that has been in conservative opinions in the past).

Estrella Santos-Zacaria, the transgender refugee at the center of the case, had appealed a decision to deport her after she twice came to the U.S. seeking safety and a better life.

In a unanimous decision Thursday, the Supreme Court sided with Santos-Zacaria, allowing her another chance to fight the deportation decision and potentially remain in the U.S. if that bid is successful.

The decision is largely technical, but the language used in the opinion is historic, particularly considering the recent wave of anti-LGBTQ measures across the country.

For the moment, this news fulfills the need for ending with hope and compassion, gives us a bit of emotional respite from the inanity of the Federal Court’s gigantic Payne in the tuchus.

Copyright©2023 Kurt F. Stone   #🟦

#933: "A Toad Under the Harrow"

Matthew Kacsmaryk is a Judge of the United States District Court for the Northern District of Texas. He is the jurist (?) who, just the other day issued a ruling in case No. 23-10362, called ALLIANCE FOR HIPPOCRATIC MEDICINE et al v. U.S. FOOD AND DRUG ADMINISTRATION et al, by which he single-handedly fulfilled the hopes, prayers and genuflections of millions of “hyper-moral, liberty-loving Americans” by issuing a nationwide ban on the use of the abortifacient Mifepristone (Mifeprex, a progesterone blocker), one of two drugs (the other being Misoprostol, a hormone originally created to prevent stomach ulcers caused by anti-inflammatories [NSAIDs] which are  commonly used to medically terminate pregnancies. (n.b. The Fifth Circuit Court of Appeals quickly reversed part of Kacsmaryk’s ruling, though the case will likely go before the Supreme Court for full resolution.)

Judge Kacsmaryk’s ruling, to say the least, was and is both bizarre and deeply troublesome. Unquestionably, the most bizarre aspect of his 49-page ruling (much of it a listing of the various plaintiffs and defendants) was his repeated reference to the 150-year old Comstock Act . The Act is an anti-vice law passed in 1873 that prohibits the mailing of “obscene or crime-inciting matter.” Kacsmaryk’s effort to resuscitate this 19th-century relic, indicates that an antiquated law passed during the Reconstruction era, will play a central role in the post-Roe v. Wade apocalyptic landscape of abortion law.    #🟦

As described in a December 2022 memorandum by the Justice Department’s Office of Legal Counsel, the original Comstock Act arose from “the handiwork of Anthony Comstock—‘a prominent anti-vice crusader who believed that anything touching upon sex… was obscene.’”

Comstock—who helped found the New York Society for the Suppression of Vice—championed the initial version of the law which forbade the mailing of any drug, medicine or anything “for the prevention of conception, or for causing an unlawful abortion.” The prohibition on contraception and the word “unlawful” were eventually dropped. In its current form found at 18 U.S.C. 1461 (Mailing obscene or crime-inciting matter), the law prohibits “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance; and every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” as well as advertising anything falling within these broad categories.

The most deeply troublesome part of his ruling, of course, is its central assertion: that in giving the legal stamp of approval for the use of Mifepristone in 2000, the FDA got it wrong; that the agency - whom many of the ‘hyper moral’ claim is run and staffed by liberal doctors, scientists and elitists with a pro-abortion agenda - all but ignored the possible bad (or even lethal) side effects (called “adverse events” in medical research jargon) for purposes of getting it on to the market.

In the first 18 years of its legal existence, the FDA reported that 24 women, out of approximately 3.7 million (0.000064%), have died after taking mifepristone for the purpose of medical abortion. However, as the FDA notes, “The adverse events cannot with certainty be causally attributed to Mifepristone because of concurrent use of other drugs, other medical or surgical treatments, coexisting medical conditions, and information gaps about patient health status and clinical management of the patient.”

In other words, Judge Kacsmaryk’s contention vis-à-vis bad side effects is utter stuff and nonsense.

The FDA first approved Mifeprex (mifepristone) in September 2000 for the medical termination of pregnancy through seven weeks gestation and this was extended to ten weeks gestation in 2016. The FDA approved a generic version of Mifeprex, Mifepristone Tablets, 200 mg, in April 2019. The agency’s approval of this generic reflects its determination that Mifepristone Tablets, 200 mg, are therapeutically equivalent to Mifeprex and can be safely substituted for Mifeprex. Like Mifeprex, the approved generic product is indicated for the medical termination of intrauterine pregnancy through 70 days gestation.

By extension, Judge Kacsmaryk’s ruling could be used to call any FDA-approved drug or device into question. What’s to say that next week, some fundamentalist group of physicians, pharmacists or chemists wants to sue the FDA over the approval of contraceptive pills, hormones or medical devices because the pre-marketing research wasn’t as muscular as it should have been? Or that the major COVID vaccines and boosters cause far too many deaths? First they came for the press in order to get the public to distrust anything they said or printed. Next they came for the White House and the Congress until its ratings were in the sewer. Now, if Kacsmaryk and his “patriotic” cronies have their way, trust in the Food and Drug Administration (which, by the way, was never run by Dr. Fauci, as many of them claim) will also fall beneath the sub-basement.

(n.b. Yesterday (4/15/23) Supreme Court Justice Samuel Alito issued an administrative stay of Judge Kascmaryk’s ruling until the end of the day, Wednesday, April 19. The Department of Justice has filed paperwork with SCOTUS, arguing that Kascmaryk’s ruling is legally unsupportable, and thus should be overturned.)

Those of us who labor long and hard in the vineyards of research, clinical trials and medical ethics (which is not an oxymoron), know very well just how long, exhausting and thoroughgoing the process is for getting anything medical, pharmaceutical or technical approved by the FDA. Generally speaking, it takes years, billions of dollars, and innumerable trial phases (starting with laboratory animals, then healthy human subjects,  then  subjects having a particular disease or condition and finally, post-marketing statistics. Anyone participating in trials is fully informed as to what is going to happen if they voluntarily consent to enter a study. Any and all potential adverse events are spelled out; anything in a consent document that is even remotely pushy or fanciful is deleted. Every step along the way is evaluated and overseen by either a Board of Ethics or an Institutional Review Board. This is how I’ve been earning my living for several decades . . .  (And by the way, all consent documents contain a boilerplate comment to the effect that “there may be other potential adverse events that we are not currently aware of.”)

Debunking Judge Kacsmaryk’s contention that not all dangerous side effects were investigated prior to FDA approval of Mifepristone or Misoprostol is actually pretty easy: all one has to do is go to www.clinicaltrials.gov type in which ever drug, device or surgical technique you wish, and you will get a full history of any and every trial ever done. As but one example, if you go to the site and type in Mifepristone, up will pop 227 different trials and studies carried out over the years. You will discover that there are still active studies investigating other uses for this drug . . . including certain types of breast cancer, type2 diabetes and Adenomyosis. Type in Misoprostol and you will find 566 past, present and proposed studies on many, many issues affecting women.

(Please note: deciphering medical terminology can be difficult. If you go on to the clinical trials website, you may need to ask your family doctor, specialist, pharmacist or, in some cases, your rabbi (!) to translate things into understandable English.)

                Judge Matthew Kacsmaryk (1977- )

At about the time Matthew Kacsmaryk was being considered for a lifetime appointment to the federal bench (early 2017) he submitted a draft article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions. At the time, he had already spent several years working for a conservative legal group fighting legal fights on behalf those who demanded that their religious beliefs and scruples be protected as a matter of law.

The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

But a few months after the piece arrived, an editor at the law journal who had been working with Kacsmaryk received an unusual email: Citing “reasons I may discuss at a later date,” Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute, according to emails and early drafts obtained by The Washington Post. The article, titled “The Jurisprudence of the Body,” argues that religious physicians “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe” abortion medication “designed to kill unborn children.”  Kacsmaryk asked for his name to be removed from the article for “reasons I may discuss at a later date” and be replaced by two coworkers at the religious freedom-focused law firm

When Matthew Kacsmaryk appeared before the Senate Judiciary Committee, his dossier and collection of legal essays did not contain any information about “The Jurisprudence of the Body." It had simply disappeared from his record.  In swearing to tell the truth, the whole truth and nothing but the truth, he told the assembled senators that his private religious beliefs would in no way affect his ability to make dispassionate decisions based solely on the law and legal precedents. In other words, like the 3 justices named to the Supreme Court by Donald Trump (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), Matthew Kacsmaryk lied; they too proclaimed that they would follow legal precedent when it came to Roe v. Wade.  And of course, all 3 voted in favor of its dismemberment.

I wonder how Judge Kacsmaryk or the current Supreme Court would respond to a lawsuit filed on behalf of plaintiff’s claiming that the drug Sildenafil should never have been approved by the FDA? Using the Texas judge’s legal logic, it should be banned.  This, of course, will never happen; it will never even be considered.  Why? Because Sildenafil is known by 2 generic names: Viagra and Revatio.

The next time we vote, please remember that positions on the federal bench are lifetime appointments. It is far too easy for ideologues like Kacsmaryk or G-d knows how many Trump/McConnell/Federalist Society appointees who urrent occupy seats and gavels which will give them the power to veto the wishes of vast majorities for at least the next generation, if not 2. This should become a major, major issue for the 2024 elections.

As to Judge Kacsmaryk himself, he should be feeling, in the words of the great British novelist and wit P.G. Wodehouse, like “a toad under the harrow” . . . like one soon to be chopped up into little pieces. Although Wodehouse was writing about Hildebrand Spencer Poynt de Burgh, twelfth Earl of Dreever, it could easily have been about Matthew Joseph Kacsmaryk. Writing about the good Earl of Dreever, Wodehouse noted: “Nature had equipped Hildebrand Spencer Poynt de Burgh with one of those cheap-substitute minds. What passed for brain in him was to genuine gray matter as just-as-good imitation coffee is to real Mocha. In moments of emotion and mental stress, consequently, his reasoning . . . was apt to be in a class of its own.”

Copyright©2023 Kurt F. Stone

Can Justice Breyer Become Joe Biden's Justice Brandeis?

                               Mr. Justice Brandeis

Students, scholars and devotees of modern American political history are well aware that FDR’s 1937 “Court Packing Plan” was without question, the lowest moment of his 12+year presidency. Royally furious over a largely conservative Supreme Court’s dismantling of aspects of his New Deal (most notably in Humphrey's Executor v. United States, [a 9-0 ruling which ruled that the President may not remove a Federal Trade commissioner without cause]; Louisville Joint Stock Land Bank v. Radford , [a 9-0 ruling which declared the Frazier-Lemke Farm Bankruptcy Act unconstitutional], and the A.L.A. Schechter Poultry Corp. v. United States, [a 9-0 decision which essentially made the National Industrial Recovery Act unconstitutional] it made FDR see red and seek political retribution.

That retribution came in the form of a proposed piece of legislation which would ultimately sink like a heavily-weighted balloon. Shortly after his unprecedented trouncing (538-9 in the Electoral College) of Kansas Governor Alf Landon (a moderate Republican), FDR developed his plan to reform the court in secrecy, working with his attorney general, Homer Cummings, on a way to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.

FDR’s retributive plan was to pass a law—the Judicial Procedures Reform Bill of 1937—that would allow the President to appoint an additional justice for every sitting justice who was over 70 years of age, and thus giving Roosevelt the authority to add six of his own justices to the court. With two liberals already on the bench, that would put the odds in well FDR’s favor.  Roosevelt truly believed that coming on the heels of his overwhelming presidential victory and staggering Democratic majorities in both houses of Congress (338-89 in the House and 76-16 in the Senate) he could easily pass his bill, thus “packing” the Supreme Court for the foreseeable future.  But such was not to be.  One of key “carpenters” in putting the final nail in FDR’s “Court Packing” plan was his good friend and longtime adviser, Supreme Court Justice Louis D. Brandeis, the first Jewish member of that august body (he had been appointed by Woodrow Wilson in 1916).

Working through both political channels within Congress and  face-to-face conversations with FDR, Brandeis (whom FDR reverently referred to as “Old Isaiah” likely because he possessed the bearing and moral gravitas of an Old Testament prophet) let it be known that he found the plan to be “a very destructive blow” and that it “impugned the integrity of the court.”  Spurred largely by Brandeis, the momentum behind FDR’s proposed legislation began waning; so much so that editorialists across the country took pen in hand to denounce what they saw as the president’s hubris.  The court packing plan became a major issue in the 1938 midterm elections: The Democratic Party lost a net of eight seats in the U.S. Senate and a net 81 seats in the U.S. House.

President Roosevelt lost the Court-packing battle, but he won the war for control of the Supreme Court . . . not by any novel legislation, but by serving in office for more than twelve years, and appointing eight of the nine Justices of the Court. (With the retirement of Justice Willis Van Devanter in 1937, the Court's composition began to move in support of Roosevelt's legislative agenda. By the end of 1941, following the deaths of Justices Benjamin Cardozo (1938) and Pierce Butler (1939), and the retirements of George Sutherland (1938), Louis Brandeis (1939), James Clark McReynolds (1941), and Charles Evans Hughes (1941), only two Justices (former Associate Justice, by then promoted to Chief Justice, Harlan Fiske Stone, and Associate Justice Owen Roberts) remained from the Court Roosevelt had  inherited in 1933.  

FDR’s failed court packing master plan took place more than 80 years ago.  Now, in 2021, the issue has returned - if not with a vengeance, than at least to the nation’s editorial pages. Just this past Friday, President Joseph R. Biden, fearful that the 6-3 conservative court left him by his predecessor (thus making many of his legislative proposals dead in the water) ordered a 180-day study of adding seats to the Supreme Court. Yes, the possible return of FDR’s ill-fated plan. During the 2020 campaign, Biden promised to establish a bipartisan commission to examine the potentially explosive subjects of expanding the court or setting term limits for justices. While Mr. Biden, a former chairman of the Senate Judiciary Committee, has asserted that the system of judicial nominations is “getting out of whack,” he has declined to say whether he supports altering the size of the court or making other changes — like imposing term limits — to the current system of lifetime appointments.

        Justice Stephen G. Breyer

Enter SCOTUS’s senior justice, 82-year old Stephen G. Breyer, possibly his generation’s “Old Isaiah.”  Like Brandeis before him, Breyer is a progressive.  Like Brandeis, he is a legal scholar of the first rank'; he still lectures at Harvard Law School, his alma mater.  According to the highly-respected Oyez - a free law project from Cornell’s Legal Information Institute (LII) - Justice Breyer “ . . . is known for being the most pragmatic justice on the bench. His decisions are often guided by maneuvering around the real life consequences to the people affected by the decision.”  It is with this background that Mr. Justice Breyer, in a recent speech (ironically, the “Scalia Lecture”) to students and faculty at Harvard, warned that expanding the size of the Supreme Court could erode public trust in it by sending the message that it is at its core a political institution.  In his speech he explored the nature of the court’s authority, saying it was undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, he said not all splits on the court are predictable and that those that are can generally be explained by differences in judicial philosophy or interpretive methods.

Not being a law school graduate, I can neither attest to nor disagree with Breyer’s rendering of court history.  As one who has long studied and written about both SCOTUS and American political history, I am well aware of the various justices (like the late Chief Justice Earl Warren) who, once appointed to the bench, surprised both the public and legal community by becoming moderating forces.  Yes, like it or not, the Supreme Court is, at base, a political institution.  And yet, as Breyer noted with seeming satisfaction,  “. . . the court did not hear or decide cases that affected the political disagreements arising out of the 2020 election.” And he listed four decisions — on the Affordable Care Act, abortion, the census and young immigrants — in which the court had disappointed conservatives.

Those rulings were all decided by 5-to-4 votes. In all of them, the majority included Chief Justice John G. Roberts Jr. and what was then the court’s four-member liberal wing to form majorities. in his valedictory at Harvard Law, “I hope and expect that the court will retain its authority,” Justice Breyer said. “But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

I hope and pray that Breyer’s words, like those of Brandeis long before him, will fall forcefully on the ears, heart and mind of FDR’s newest successor . . . so as not to become a destructively telling issue in the 2022 midterm elections. Also, what goes around comes around . . . meaning in this case that were Biden’s  version of some court packing/tenure limiting plan come into effect, sure as shooting, some other administration/Congress would make Democrats rue in anger the day it became law.

It is likely that Mr. Justice Breyer will be retiring before too long and returning to his beloved San Francisco. At that time, President Biden will hopefully be able to nominate - and get passed - a jurist of the mind, temperament and philosophy of Stephen Breyer. And then, like FDR, perhaps Democratic presidents will be able to outlive as many of the court’s conservative ideologues as possible and return that branch to its exalted perch.

“Old Isaiah” is keeping an eye out from his celestial seat.

Copyright©2021 Kurt F. Stone

Like an Exclamation Point in the Heavens

According to an age-old Jewish belief, when a person passes away on Shabbat (the Jewish Sabbath) or a Yom Tov (a major Jewish holiday), it is as if the ribono shel olam (the Master of the Universe) has placed a shimmering exclamation point in the highest heavens for the one who has departed this world. Now, when that major Jewish holiday coincides with the Sabbath itself, that exclamation point - so we are told -not merely shimmers; it is radiates with a light that seems to last an eternity. I have to believe that is why Justice Ruth Bader Ginsburg departed this mortal coil on what we call Shabbat Rosh Hashana - “The Sabbath which falls on the Jewish New Year.”  It permits G-d to express in the most obvious of ways, just how truly exceptional the good justice was, is, and always shall be.  

Without question, Ruth Bader Ginsburg was one of the most stellar and consequential Justices in the history of the Supreme Court of the United States.  A thoroughgoing judicial progressive, she was also a great friend of the court’s most intellectually stolid conservative, the late Antonin Scalia.  What in the world could the two have in common? Opera.  That’s the way things used to be in politics and the judiciary; human beings getting along with one another because they discovered the humanity in one another . . . regardless of their disagreements.  Justices Ginsburg and Scalia also shared a love of the law despite viewing it from bipolar angles. 

(BTW: for those who might want to learn a  lot more about Ruth Bader Ginsburg the woman, I highly recommend the best book I have ever read about the Jewish Justices of the Supreme Court: my good friend, constant lunch companion and fellow Californian David Dalin’s magnificent work, Jewish Justices of the Supreme Court From Brandeis to Kagan.  It’s a great read!).

Yesterday (September 21) it was announced that Justice Ginsburg will lie in state in the United States Capitol. It is an unusual honor for a Supreme Court Justice and one that has never before been granted to a woman. Had the decision been in the hands of ‘45, there is every reason to assume that this honor would never have been afforded America’s more revered and beloved legal lioness. But precisely who receives the honor of lying in state in the Capitol is a decision that rests squarely with the Speaker - in this case, Nancy Pelosi who was a longtime friend and admirer of Justice Ginsburg. In describing RBG’s death, Madam Speaker called it “an incalculable loss for our democracy and for all who sacrifice and strive to build a better future for our children.” Also out of the ordinary, Justice Ginsburg will lie in repose at the Supreme Court for two days - tomorrow and Thursday, and her coffin will be placed under the portico at the top of the building’s front steps. Her coffin will be placed on the Lincoln catafalque, which was used for President Abraham Lincoln’s coffin when his body lay in state in the Capitol Rotunda in 1865.

Such respect has rarely been shown for a Supreme Court justice. But then again, we’ve rarely been in the historic presence of such a diminutive giant . . .

Then too, RBG’s death - like just about everything these days - has already become the focus of a nasty political war of words and deeds. No sooner had justice Ginsburg’s passing been announced then partisan politics reared its terribly ugly head.  Within 2 hours, Georgia Republican Representative Doug Collins tweeted “RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws. With @realDonaldTrump nominating a replacement that values human life, generations of unborn children have a chance to live,” Collins wrote.  (It should be noted that Ruth Bader Ginsburg didn’t take her seat on the nation’s highest court until Roe v Wade had been the law for nearly a generation and that for nearly more than 25 years, Donald Trump was one of NYC’s larger donors to Planned Parenthood.) Getting back to Rep. Collins, even Fox News nailed him for his extra nasty tweet.  Many conservative Republicans were terribly concerned lest the next Justice not be 100% in favor of overturning Rose V. Wade, putting the 2nd Amendment in jeopardy, or permitting the President of the United States from using his office to do whatsoever he sought fit to do.  And mind you, all this was made public hours and hours before Justice Ginsburg was laid to rest. 

Those who have long followed politics closely will well recall all the sturm und drang (turmoil) that arose in Mitch McConnell’s senate when then-POTUS Obama nominated Federal Judge Merrick Garland to the High Court more than 8 months before the 2016 presidential election. (Garland, then - and now - was a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. whom Obama had nominated to replace the late Justice Antonin Scalia. Back in 2016, you will recall, McConnell and virtually all his Republican colleagues refused to even consider the nomination of the progressive Judge Garland claimed that “voters should be given a say by way of choosing the next president. A sprinkling of quotes from 2016 will reveal how Leader McConnell and his Republican colleagues responded to the question “Should the Senate vote hold hearings or a vote on Judge Garland?

• Marco Rubio (FL): “I don’t think we should be moving forward on a nominee in the last year of this president’s term. I would say that if this was a Republican president.” (3/17/16)

• Chuck Grassley ( IA): “A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people should not be denied a voice. Do we want a court that interprets the law, or do we want a court that acts as an unelected super-legislature . . .?” (3/16/16)

• Mitch McConnell (KY) “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president..” (2/13/16)

• John Hoeven (ND): ““There is 80 years of precedent for not nominating and confirming a new justice of the Supreme Court in the final year of a president’s term so that people can have a say in this  very important decision.” (4/21/16)

• Lindsay Graham (SC): “I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president.  I hope all Americans understand how important their vote is when itcomes  to picking a new Supreme Court justice. (3/16/16)  

• John Cornyn (TX): “At this critical juncture in our nation’s history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the  Supreme Court. The only way  to empower the American people and ensure they have a voice is for the next president to make the nomination to fill this vacancy.” (3/16/16)

• Ted Cruz (TX) “This should be a decision for  the people.  Let the election decide.  If the Democrats want to replace this nominee, they need to win the election.” (2/14/16)

As of this morning, there are only 2 Republican members of the U.S. Senate - Alaska’s Lisa Murkowski and Maine’s Susan Collins - have announced that they urge waiting until after the 2020 election before taking up the matter of Justice Ginsburg’s replacement.  It seems clear that all those Republicans who kept Judge Garland from even getting a hearing because of some “Constitutional principle,” have now shown their true colors  . . . bright yellow.  And this, despite a report from NPR’s longtime legal affairs correspondent Nina Totenberg that Justice Ginsburg’s dying wish (made bedside surrounded by family members and her personal physician) was that  she wanted the winner of the November election to choose her replacement.  The POTUS and members of the Fox entertainment squad rushed to declare - without a scintilla of proof - that the dying Justice never made this final request.  Instead, ‘45 suggested (again, without evidence) that the dying wish was likely crafted by either Adam Schiff, Chuck Schumer and/or Nancy Pelosi. Fox entertainer Tucker Carlson said flatly that he doesn’t believe Ginsburg actually dictated the message: “We don’t know actually what Ruth Bader Ginsburg’s final words were. Did she really leave this world fretting about a presidential election? We don’t believe it for a second.”  Rep. Schiff (whom ‘45 referred to as “Shifty” Schiff in his Tweet denying Ginsburg’s dying wish (which her granddaughter wrote down) issued his own tweet denying ‘45’s claim: “Mr. President, this is low.  Even for you.  No, I didn’t write Ruth Bader Ginsburg’s dying wish to a nation she served so well, and spent her  whole life making a more perfect union.  But I am going to fight like hell to make it come true.  No confirmation before inauguration.” 

Justice Ginsburg’s longtime friend, correspondent Totenberg said yesterday that she confirmed the dying wish with the Justice’s doctor.  Despite this, Trump and Carlson’s false claim spawned numerous conspiracy theories on social media, claiming that Ginsburg dictated the note to her “8-year old granddaughter.” (Far from being an 8 year old, Clara Spera  [who always called her grandmother bubbie attended Cambridge, graduated from Harvard Law in 2017, and is married to Shakespearean actor Rory Boyd.)  All this, and Justice Ginsburg has yet to be laid to rest. . .

It is highly likely that Trump and the Republicans will get  their way and make sure that SCOTUS finally becomes an impregnable bastion of Federalist Society judges; one easily capable of overturning Roe v Wade, of kicking the vast majority of people with preexisting medical conditions (which now includes COVID-19) off of Obamacare; of finding the constitutional “Emoluments Clause” unconstitutional; of outlawing the teaching of Darwinian theory in public schools and of giving the National Rifle Association whatever in the world it wants.

So what can be done?  To my way of thinking it is imperative that  Democrats recapture both the White House and United States Senate, expand Democratic victories to state legislatures and governors’ mansions, and give serious, serious consideration to instituting their own version of FDR’s “court packing plan.” There is nothing in the Constitution which states that SCOTUS must have precisely 9 members.  

And above all, let’s keep the spirit and strength of Justice Ruth Bader Ginsburg alive.  Just look up to the heavens, look for that celestial exclamation point and let her fortitude be our fuel.

42 days until the election . . .

Copyright©2020 Kurt F. Stone