“Jim Crow Era” Filibuster To Block Janice Rogers Brown

This is a WASHINGTON POST article but is behind a pay wall. Here it is, though… a must read Thiessen article!

Biden Blocked A Black Woman Justice
by, Marc Thiessen

President Joe Biden wants credit for nominating the first Black woman to the Supreme Court.

But here is the shameful irony: As a senator, Biden warned President George W. Bush that if he nominated the first Black woman to serve on the Supreme Court, he would filibuster and kill her nomination.

The story begins in 2003, when Bush nominated Judge Janice Rogers Brown to serve on the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is considered the country’s second-most important court, and has produced more Supreme Court justices than any other federal court.

Brown was immediately hailed as a potential Supreme Court nominee. She was highly qualified, having served for seven years as an associate justice of the California Supreme Court — the first Black woman to do so.

She was the daughter and granddaughter of sharecroppers, and grew up in rural Alabama during the dark days of segregation, when her family refused to enter restaurants or theaters with separate entrances for Black customers.

She rose from poverty and put herself through college and UCLA law school as a working single mother. She was a self-made African American legal star. But she was an outspoken conservative — so Biden set out to destroy her.

Biden and his fellow Democrats filibustered her nomination, along with several other Bush circuit court nominees, all of whom had majority support in the Senate. Columnist Robert Novak called it “the first full-scale effort in American history to prevent a president from picking the federal judges he wants.”

Democrats argued that she was out of the legal mainstream, but Republicans responded that she had written more majority opinions than any other justice on the California Supreme Court — and she was reelected with 76% of the vote, the highest percentage of all the justices on the ballot.

When Democrats derailed her nomination, Bush renominated her in 2005. Brown eventually was confirmed by a vote of 56 to 43 — after Democrats released her and several other Bush nominees in exchange for Republican agreement not to eliminate the filibuster for judicial nominations.

Biden voted a second time against her nomination. He never explained why, if Brown was so radical, Democrats let her through but killed 10 other Bush nominees.

The following month, when Justice Sandra Day O’Connor announced her retirement, Brown was on Bush’s shortlist to replace her. She would have been the first Black woman ever nominated to serve as an associate justice of the Supreme Court.

But Biden appeared on CBS’s “Face the Nation” to warn that if Bush nominated Brown, she would face a filibuster. “I can assure you that would be a very, very, very difficult fight and she probably would be filibustered,” Biden said.

Asked by moderator John Roberts “Wasn’t she just confirmed?,” Biden replied that the Supreme Court is a “totally different ballgame” because “a circuit court judge is bound by stare decisis. They don’t get to make new law.”

What Biden threatened was unprecedented. There has never been a successful filibuster of a nominee for associate justice in the history of the republic. Biden wanted to make a Black woman the first in history to have her nomination killed by filibuster.

Bush eventually nominated Samuel A. Alito Jr.

Today, Biden calls the filibuster a “relic of the Jim Crow era.” But he threatened to use that relic as a tool to keep a Black woman who actually lived under Jim Crow off the highest court in the land.

The irony is that now he wants to get rid of the filibuster, and claim credit for putting the first Black woman on the court.

There were many conservatives on Bush’s shortlist whose legal philosophy Biden opposed. But Biden only promised to filibuster the one Black woman. Why? Perhaps a clue lies in another confirmation fight that Biden helped wage.

In 2001, Democrats blocked the nomination of Miguel Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. According to internal strategy memos obtained by The Wall Street Journal, they targeted Estrada at the request of liberal interest groups who said Estrada was “especially dangerous” because “he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”

They did not want Republicans to put the first Hispanic on the Supreme Court. So, Biden and his fellow Democrats killed Estrada’s nomination — the first appeals court nominee in history to be filibustered successfully.

It paid off when President Barack Obama nominated Sonia Sotomayor as the first Hispanic justice.

Democrats’ commitment to diversity is a ruse. Biden was willing to destroy the careers of an accomplished Latino lawyer and a respected Black female judge, and stop Republicans from putting either on the Supreme Court.

For Democrats, it’s all about identity politics. Indeed, Biden might not have become president had he not made the pledge to nominate a Black woman. That promise helped secure the endorsement of Rep. James E. Clyburn, D-South Carolina — which won Biden the South Carolina primary and rescued his faltering campaign.

So, when Biden tries to bask in the glory of his historic nomination, remember Janice Rogers Brown — the Black woman who does not sit on the Supreme Court today because of Biden’s disgraceful obstruction.

Follow Marc A. Thiessen on Twitter, @marcthiessen.

Race, Gender and Class Take Precedence Over Justice (SCOTUS)

Chief Justice John Roberts and justices Samuel Alito and Clarence Thomas dissented:

  • “Today, with the admirable intention of providing justice for one criminal defendant, the court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the constitution,” [….] “it is questionable whether our system of trial by jury can endure this attempt to perfect it.” ~ Samuel Alito

Here is the WALL STREET JOURNAL article Dennis was reading from:

For 250 years U.S. law has protected jury verdicts from being overturned due to juror misconduct or bias. A liberal Supreme Court majority has now carved out an exception for racial bias, and in an ill-defined way with no limiting principle that is likely to damage the jury system.

After a Colorado jury convicted a Mexican man of sexual harassment, two jurors signed affidavits that a retired police officer on the jury had expressed racial animus during deliberations. The juror was reported to have stated that “nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls,” among other slurs. The defendant’s counsel sought to overturn the conviction based on racial animus but was denied by the trial judge.

The Sixth Amendment guarantees a trial by an impartial jury, and the legal system affords numerous protections against juror bias and misconduct. Jurors can be screened for bias prior to selection. The judge and counsel can discipline juror misconduct during the trial, and jurors may report on their peers before a verdict is rendered. Any single juror’s bias can also be policed by 11 others.

The no-impeachment rule rooted in English common law also shields verdicts from being challenged. As Justice Anthony Kennedy explained in the 5-3 majority opinion this week in Pena-Rodriguez v. Colorado, the rule “promotes full and vigorous discussion by jurors by providing considerable assurance that after being discharged they will not be summoned to recount their deliberations” or otherwise harassed. It also “gives stability and finality to verdicts.”

Yet Justice Kennedy joined the Court’s four liberals in Pena-Rodriguez to overturn that standard for accusations of racial bias. The Justice writes for the majority that racial bias is such “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.”

Pena-Rodriguez declares a new racial standard for overturning jury verdicts that was rejected by Colorado and has no constitutional basis. It also doesn’t establish a bright-line test of what constitutes unacceptable racial prejudice. Judges are apparently supposed to know it when they see it. “Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar,” Justice Kennedy concedes, but that ambiguous caveat won’t prevent endless complaints and appeals.

As Justice Samuel Alito muses in dissent, would a micro-aggression such as “this macho type” be permissible? How about positive racial bias? Take Justice Sonia Sotomayor’s famous comment that a wise Latina woman would “more often than not reach a better conclusion than a white male who hasn’t lived that life.” And what about religious prejudice or sexism that also receive equal protection under the Constitution?

“Although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding,” writes Justice Alito. “Nothing in the text or history of the [Sixth] Amendment or in the inherent nature of the jury trial right suggests that the extent of the protection provided by the Amendment depends on the nature of a jury’s partiality or bias.”

Justice Kennedy counters that at least 16 jurisdictions have adopted a rule for racial-bias exceptions. But Congress explicitly rejected such an exception in 1975, and so have two-thirds of states. The Supreme Court had heretofore rejected exceptions to the no-impeachment rule.

The ruling is a step toward corrupting juries with political standards based on the progressive obsessions with race, gender and class. It also continues Justice Kennedy’s long march away from constitutionally neutral standards on race. “As this Court said some years ago,” Justice Alito concludes, “it is questionable whether our system of trial by jury can endure this attempt to perfect it.”