I have written on this blog many times that the election of Donald Trump has so far worked, and continues to work, as a litmus test for many ways of how the American government works, on federal and state levels.
Certain things which the law permitted the previous administrations to do, somehow becomes not permissible under this administration.
Certain things that were wrong - but not noticed - under the previous administrations, became more visible just because Trump is doing it.
I am planning a detailed overview of this phenomenon, but in this particular article I wanted to point out one extraordinary feature of the "Trump litmus test": it has shed a light on the U.S. Supreme Court and what is very wrong about its operation over the last 100 years.
First of all, with the death of Justice Scalia (and unlawful filibustering by the Republican Senate of a nomination to SCOTUS by President Obama) and retirement of Justice Kennedy, Trump has got to fill two seats so far on the U.S. Supreme Court.
Same as President Obama, same as all presidents before him, President Trump has avoided as a plague in fitting the vacancy on the U.S. Supreme Court, the last resort in death penalty cases - candidates with criminal defense background.
The only people who have criminal law experience on that court are former prosecutors.
Of the 9 current justices of the U.S. Supreme Court,
- Stephen Breyer;
- Clarence Thomas;
- John Roberts (The Chief Justice):
- Ruth Ginsburg;
- Samuel Alito;
- Neil Gorsuch;
- Sonia Sotomayor;
- Elena Kagan;
- Brett Kavanaugh,
the only U.S. Supreme Court justice who does not have prior experience as a prosecutor is Ruth Ginsburg, and yet, Ruth Ginsburg's experience as a law professor and general counsel for ACLU between 1973 and her nomination to the bench in 1980 is not the equivalent of a background in criminal defense, since the ACLU has never undertaken criminal defense, and Ruth Ginsburg in particular did not work as a criminal defense attorney.
I thoroughly dislike Hillary Clinton and did not vote in the previous presidential elections because I did not see good presidential candidates in either of the candidates running in 2016.
President Trump, so far, also disappointed, having nominated to the court 2 white males, both former prosecutors, having so far confirmed the trend portraying background in criminal defense or civil rights litigation as a disqualification for public office (only one justice on the U.S. Supreme Court has a qualification in civil rights litigation, and NONE - in criminal defense). Once again, this court handles criminal cases, and, especially, death penalty cases.
With NO justices having prior experience in criminal defense, while 8 justices having experience (and indoctrination) in prosecution, and the mentality of people having "enjoyed" prosecutorial immunity - which corrupts prosecutors' minds and drives them to score convictions, without regard whether the law is followed, with an eyes on the prize, career advancement.
For 8 out of 9 U.S. Supreme Court justices, prosecutorial positions did bring a career advancement, to the top of the American government, a lifetime appointment to a position where there are no job requirements, no accountability and an unlimited power over life and death (literally), people's fates, property, and over setting the law in the entire country - without authority for doing that in the U.S. Constitution, but by "well-settled" custom.
Since 1925, SCOTUS has asked - and received - from the U.S. Congress the gift of not having to review all petitions filed with the court, on the merits.
A SCOTUS judge is the only position where the judge does not have to preside over court cases other than impeachment of the President (applicable only to the Chief Judge of SCOTUS) and does not have to discharge functions other than administrative (swearing in highest officers of the U.S. Government).
Otherwise, there is no minimum of cases to review per year for SCOTUS.
If SCOTUS chooses no cases for review in a given year, they have a right to do that, too. Nobody can make them accountable for refusing to review the absolute majority of cases (7920 out of 8000 filed, and then, we do not have official statistics of how many cases are REALLY filed published by the U.S. Supreme Court, only approximate numbers).
Nothing too crooked.
Judges accept gift from parties and attorneys - for themselves and for their law clerks.
Periodically scandals flare about particularly corrupt gift-taking, but no impeachment of a U.S. Supreme Court Justice occurred on that ground so far, and the U.S. Supreme Court does not have a code of judicial conduct, but does have a code of silence for its clerks and a code of PERSONAL loyalty of clerks to justices, which has nothing to do with the U.S. Constitution that gives to justices their power, within its strict boundaries.
Justice Scalia was "found dead" at a remote Texas ranch with personnel speaking only Spanish, the ranch belonging to an individual who has had prior litigation with the U.S. Supreme Court that ended up in his favor.
The duck-hunting trip of the same Scalia with a party in litigation also did not result in discipline for Scalia.
Scalia's friend on the court Justice Ginsburg, while spewing open hatred to the current President, and having done so since before his elections, continues to preside over cases where he is a party, without recusal.
While President Trump is being investigated for "Russian collusion" by a special counsel, nobody investigates SCOTUS justices when they travel or lecture while paid by foreign governments.
In 2015, foreign sponsors paid (bought) U.S. Supreme Court justices for the following:
Roberts - lectures in Japan;
Ginsburg - lectures in South Korea; Switzerland
Kennedy with spouse - Austria;
Kagan - Israel;
Breyer - Great Britain
Ginsburg and Alito were paid by lawyers' organizations to travel abroad in 2015,
Ginsburg - to the Great Britain (paid for by the American College of Trial Lawyers),
Alito - to the Dominican Republic, paid for by the Federal Bar Council -
by organizations of attorneys APPEARING in front of these judges.
SCOTUS judges who reject the majority of incoming petitions, have time for side jobs.
For example, in 2015, the following side jobs were reported by SCOTUS judges (I summarized this information from justices' releases obtained by a watch-group on a Freedom of Information Request), I have printouts of copies of justices' actual financial disclosures for 2015 are on file.
|Anthony M. Kennedy
||McGeorge School of Law,
University of the Pacific
|| $ 12,500.00
|Anthony M. Kennedy
||Colonial Williamsburg Foundation
||Horatio Alger Association
||Creighton University School of
|| $ 15,000.00
||George Washington University
School of Law
|| $ 10,000.00
||J. Reuben Clark Law School -
|| $ 2,225.00
||The Daily Caller
||Liberty Consulting, Inc.
|| Salary and
||Trust Article Fourth U/W Martin
D. Ginsburg, Trustee
||University of Michingan - Tanner
|| $ 10,000.00
||ABA Advisory Committee on the
Law Library of Congress
||Member Honorary Board of the
Franciscan Monastery of the Holy Land in the United States
||University of Kentucky
|| $ 6,000.00
||Duke University Law School
|| $ 15,000.00
||Harvard Law School
||President and Fellows of Harvard
|| $ 15,000.00
||Dana-Farber Cancer Institute
||The Pritzker Architecture Prize
||Penguin Random House LLC,
|| $ 116,774.61
||The authors Registry, Inc;
|| $ 384.93
||Penguin Random House LLC,
Note that, when SCOTUS Justices are paid lecturers in colleges and universities, they were disqualified from hearing immigration cases where colleges and universities were claiming standing and injury from Trump administration's "travel ban".
None of them recused.
And none of that became a burning issue in the American media or for the American public.
No "emolument clause" was invoked, no demonstrations held in the streets, no lawsuits filed and no criminal or impeachment investigations commenced.
In fact, complaints against U.S. Supreme Court justices die on filing - because NOBODY "under the law" in the United States may discipline a SCOTUS justice.
One might say that complaints against Justice Kavanaugh were politically motivated - since he was on the federal bench for 12 years, from 2006 to 2018, with no complaints filed against him.
The trigger for the complaints was not the judge's behavior, but him having been nominated by President Trump who certain people want to filibuster no matter what he does.
From that point of view, complaints against Kavanaugh, likely, did not have merit and were unfair.
But, that is not the point I am making here.
The point I am making is that the complaints, fair or unfair, meritorious or not, were not even REVIEWED by federal judges - BECAUSE Judge Kavanaugh has become a U.S. Supreme Court Justice Kavanaugh, and as such, unreachable by judicial discipline.
He (and his 8 associates) have a job that has
- no requirements of a minimum caseload;
- a marble palace and a practically unlimited budget - for 9 people to review court cases, for which the same court had, initially, a single room in the Capitol building;
- plenty of time to go, during business hours, to
- talk to law students;
- talk to bar associations (all expenses paid for travel and accommodations);
- write books, sell them and advertise them;
- lecture for money;
- an ability to allow themselves to accept gifts in money and in kind for themselves and for their personnel from parties and counsel in litigation, and from foreign governments and entities -
with NO ACCOUNTABILITY whatsoever.
The "phenomenon" of no discipline for a U.S. Supreme Court Justice BECAUSE he is a U.S. Supreme Court Justice was caught by the media because the complaints were against a Trump-nominated Justice.
But, the same applies to all other judges of this court.
Isn't it time to demand from the newly-elected democratic House in the U.S. Congress to stir up this sinecure that has nothing to do with the authority given to this court (a limited authority, mind) by the U.S. Constituion, and to re-establish this court the way it was planned by the "Founding Fathers" in the first place -
not as a lifetime graft-making sinecure without any accountability and unlimited power,
but a court of law that must resolve ALL incoming petitions on the merits.
If they do not have enough justices to review all incoming cases - expand the court.
If we have 150 justices of the U.S. Supreme Court, and if they have a strictly enforceable code of conduct, limited terms and a prohibition on making laws, and on accepting gifts of ANY KIND from the public and especially from foreign governments, entities and individuals - maybe, then, we will look the way we declare ourselves to be, a democracy?
Because the way SCOTUS is set up now smacks of a monarchy.