New associate justice - Supreme Court

And, thankfully, this process did not await the outcome of the upcoming election and the possible inauguration of Joe Biden on January 20, 2021. And it should not. Predictably, the death of Justice Ruth Bader Ginsburg on September 18 produced an appropriate outpouring of honor and tribute. It also produced the normal political rhetoric on judicial ideology and hot button issues such as abortion and immigration that come before the high court from time to time.

All too often, the federal courts have fallen victim to the politics of the day.  In 2016, a Republican-controlled Senate left the Supreme Court with an even eight for nearly a year when President Obama's nominee Merrick Garland was not brought before the Senate for a confirmation vote. President Trump took office and nominated Neil Gorsuch, who was confirmed in a matter of months.

An even number of justices leaves open the possibility that legal precedent will be set at the appellate circuit level if no majority can be accomplished on the Supreme Court.

Per Article II of the Constitution, the President nominates judges of the supreme court. Per statute, he also nominates judges of the district trial courts and circuit appellate courts. Tennessee is a part of the Sixth Circuit, which consists also of Michigan, Ohio, and Kentucky.

And so this situation was handled promptly by Republicans but perhaps not for the right reasons.  Everyone realizes that the upcoming election could tilt either way. Joe Biden has a definitive edge in the popular vote, but the decisive electoral college is up for grabs. Senate majority leader Mitch McConnell of Kentucky held up the court in 2016 but this year was a course in expeditious efficiency with a possible defeat for President Trump coming in one week.

But for all of the angst created by the Supreme Court, a few items are worthy of attention:

1.    The Supreme Court actually hears only a small fraction of all of the cases in the federal system.  The court has the authority to issue a writ of certiorari only for those cases it chooses to hear. Most of these cases involve precedent, and it takes a ruling in an actual case for the court to make law. It cannot gavel in tomorrow morning and arbitrarily change the law on abortion, for instance.

2.    I will never practice before the Supreme Court. But I am pretty sure that the justices, like most all judges in America, have minds of their own. They have their tendencies. But I would never bet a large sum of money on how a judge will rule in a given situation. A lot will be said about new justice Amy Coney Barrett's ideology. But the most important thing is that she has just served as a federal appellate judge and that she is qualified to sit on the high court.

3.   It is important, for several reasons, to keep the courts at "full speed" and to nominate and confirm judges at all levels in a timely fashion when openings occur due to death or retirement. All cases, both civil and criminal, have time-sensitive elements. When the courts are left short handed, it takes longer to give the people justice. It is a shame that Congress plays politics with the process when we are even remotely near an election. Should this change? Yes. Will it? Almost certainly not.

But welcome to the 103rd associate justice in the history of our nation's Supreme Court. Justice Barrett was born in New Orleans in 1972 and has the record one would expect of a high court nominee: Undergrad at Rhodes College in Memphis; law degree from Notre Dame; federal clerkships in law school, including for Justice Antonin Scalia; law practice in Washington, D.C.; teaching experience at George Washington, Notre Dame, and Virginia law schools; nominated by President Trump to Seventh Circuit Court in 2017 and confirmed by Senate (Illinois, Indiana, Wisconsin).

May God bless the United States and all of the federal courts.

James A. Rose

Publisher