SCOTUS, POTUS AND ALLOFUS

SCOTUS

Does history suggest that the US President has the moral right to appoint a new Supreme Court Justice in an election year?

First off, let’s not kid ourselves by using the word ‘moral’ in the same sentence as ‘US President’, especially not in 2020. Appointing a Supreme Court justice has always been a plum to be plucked from the eponymous fruit tree by any incumbent of the Oval Office. With a third appointment looming, President Trump is hoping to have enough fruit for a jar of plum jam before the end of this year.    

The answer to the question posed above seems to depend on whether a) the President in question is a Republican or a Democrat b) which party controls the Senate, and c) just how much cynicism and utter shamelessness Senate Majority leader Mitch McConnell (R-Ky) can muster. Given that he didn’t even bother to wait until rigor mortis had set in before announcing that the Senate was ready to replace Ruth Bader Ginsburg by Sunday brunch, his lack of self-reflection runs even deeper than any previous diagnosis indicated.    

The Notorious RBG

Back in 2016, according to Senator McConnell, it appears to have been morally repugnant to appoint a Democratic nominee, Merrick Garland, as an Associate Justice of the Supreme Court of the United States (SCOTUS – they do love their acronyms!) in March of a Presidential election year – i.e a full eight months before the 8 November polling date. But, in 2020 it seems to be just dandy to start the same process less than eight weeksbefore another Presidential election. 

Of course the two situations are entirely different. The truth can be found in the Chinese Zodiac.

Chinese papercut art in for the year of the monkey 2016.

2016 was the Year of the Monkey while 2020 is, with a certain poetic inevitability, the Year of the Rat. Everyone knows that in a Year of the Monkey (1932, 1944, 1956, 1968, 1980, 1992, 2004, 2016) it is not permitted, under an obscure amendment to the US Constitution of which only the senior Senator from Kentucky seems to have had sight, for the incumbent President (provided he is a Democrat) to appoint a new Associate Justice to a Supreme Court vacancy. These rules change completely, however, during any given Year of the Rat (1936, 1948, 1960, 1972, 1984, 1996, 2008, 2020). The Founding Fathers knew exactly what they were doing (as with the right to bear arms against pre-school children and the fabulously democratic Electoral College) when they favoured a rodent over a primate in framing this ‘lost’ amendment to the Constitution. It appears to have been re-discovered by the Senate Majority leader hidden underneath the original document in the National Archives where it had been carelessly placed by an absent-minded Alexander Hamilton who was late for a production meeting with Lin Manuel Miranda. Chapeau Senator!  

If Mitch has the brass neck to try and push through Trump’s nominee (probably female and due next week) it will mean the 45th President will have manged three picks in a single term. That would be a good strike rate, but not overly impressive if we look at the history of Supreme Court appointments.  

Some Presidents got to nominate a hell of a lot of justices. Obviously George Washington is the Olympic gold medallist in this particular discipline because he appointed all the members of the very first Supreme Court (there were six back then). He has a personal best of eleven appointees over eight years. Franklin Roosevelt comes next, largely because he was in office for most of the 20th century. His PB was nine, over almost a dozen years in the White House. He tried really hard to beat Washington’s total though (see below). William Hoard Taft holds the record for a one-term President with six appointees, before becoming Chief Justice himself (he wasn’t one of his own nominees by the way – he was appointed by half-term President Warren Harding in 1921). 

If Trump succeeds in appointing a replacement for Ruth Bader Ginsburg and, in the process, changes the political complexion of the Court for a generation, would a newly elected Joe Biden have any possible comeback? Indeed he would. There have been nine SCOTUS justices on the Supreme Court bench since the passing of the Judiciary Act of 1869 – before that the number varied between six and ten. The total is determined, not by the President, the Court itself, or the Constitution, but by Congress. So, nothing like a time-consuming and unwinnable constitutional amendment (requiring the ratification of 38 states) is needed to change the status quo.

In 1937 Franklin D. Roosevelt, frustrated at having many of his New Deal reforms stymied by adverse Supreme Court decisions against the constitutionality of many of his measures proposed to, in effect, ‘pack’ the Supreme court with a majority of his own nominees. He sought to introduce legislation which might have had the effect of increasing the number of justices to fifteen. He wanted the power to appoint a new justice for every incumbent who opted not to retire at the age of seventy. In this particular political sleight of hand he was thwarted by members of his own party and the exclusive (male) club remained nine strong. It has done so to this day.

Mitch

However, given the ’tradition’ that Senator McConnell established in 2016 and will conveniently ignore in 2020 (I won’t insult your intelligence by mentioning the Jesuitical reasoning by which he has informed his conscience, so that it allows him to flout his own ‘rules’) it should be in order for President Biden and a Democratic Congress to restore some political balance to the SCOTUS by adding one, or even two new, credible, and suitably qualified posteriors to the bench. That would make up for the SCOTUS pick denied President Obama in 2016, and newly elected President Biden (God that sounds soooo good) in 2020. 

And in case you are worried about having an even number on the court if he stops at one new appointee, fear not. In the event of a tied decision all cases go into overtime as the concept of a draw is not recognised in any truly American sport. Actually that’s not true, in the event of a tied vote the decision of the lower court being challenged in the high court, is duly confirmed. 

So, even if the handful of Republican Senators who have voiced opposition to a promotion to the SCOTUS during an election year are cajoled, bullied or intimidated into resiling from  the position held to so fervently by their own Majority leader in 2016, there are historical precedents for the Supreme Court bench to number more than nine Justices and there is no impediment to Congress adopting that course of action in 2021, the Year of the Ox.    

Why Senator Kamala Harris is unlikely to be checking out her Irish roots, even in an election year.

We wouldn’t really be Irish if we didn’t try and latch on to prominent US politicians and claim them as ‘Irish-American’—it’s a bit like the Brits claiming Paul Mescal and Andrew Scott as ‘British’ when they get BAFTA nominations, or some such. I don’t think we managed to snare Bush #41 or #43 but, otherwise, everyone since Reagan has been advised of their Irish ancestry – even Barack Obama Kearney from Moneygall. So far no one seems to have bothered to establish if Donald Trump has any Irish antecedents. Funny that. There seems to have been a unspoken decision taken among the nation’s genealogists that Scotland and Germany are more than welcome to him. 

Should Joe Biden pull off the impossible in November, and defeat the most unpopular U.S. President since the continent of America split off from Africa and wandered west under the influence of continental drift, then he will be inundated with advice about his solid Irish connections, and will be strong-armed by Taoiseach Micheál Martin, when he receives his statutory bowl of shamrock next March (Covid-19 permitting), to come and visit his ancestral home in Louth, from where his great-grandfather emigrated in 1850. Though there may be stiff competition for the honour of Biden ancestral home – apparently all eight of Biden’s great-great-grandparents on his mother’s side were born in Ireland. Let the genealogical bunfight begin. It could get ugly.

However, it would be a brave genealogist (or Taoiseach) who would try to entice future Vice President Kamala Harris to the birthplace of her only Irish ancestor! Her great-great-great-grandfather was one Hamilton Brown, born in County Antrim in the year of the declaration of American Independence, 1776. Other than the coincidence of the year of his birth, any connection with freedom and liberty (other than his own) is purely accidental.

So, why would the putative Veep not try and establish her Irish credentials and milk a few Irish-American votes in the process? That would be because great-great-great-grandpappy Ham was a top notch, wildly enthusiastic, slave-owner.  Not one of your milksop plantation wallahs with a couple of house slaves. No, Ham was a ‘scream it from the mountain tops’ sort of feudal type.

In an article entitled ‘Reflections of a Jamaican father’ Kamala Harris’s own father, Donald J. Harris, an emeritus professor of economics at Stanford,  wrote that, ‘My roots go back, within my lifetime, to my paternal grandmother Miss Chrishy (née Christiana Brown, descendant of Hamilton Brown who is on record as plantation and slave owner and founder of Brown’s Town) …’

In a previous post on Irish slave owners in the West Indies, ones who benefitted from British government compensation for the abolition of slavery in British colonies in the 1830s, I pointed out that Hamilton Brown owned twenty-five plantations in Jamaica. He received almost £20,000 in compensation for the loss of his human property (886 slaves) and unsuccessfully sought almost another £5000 for a further 233 slaves. He appears to have arrived in Jamaica to work as a humble bookkeeper in 1795 but managed to acquire a huge swathe of land (used for farming cattle and growing sugar). So, at least he was an enterprising slave driver.

Rather like his fellow Irishman, John Mitchel, born a bit further south, in Newry, Co. Down, Brown harboured some interesting ideas about the status of slaves vis a vis their soul mates, the Irish and English poor. Mitchel, an apologist for the Confederacy during the U.S. Civil War, wrote of how Irish peasants were much worse off than the slaves of the American South. Brown went even further. He considered his pampered and privileged slaves to be better off than the English poor, who were, of course, so much better off than the impoverished Irish! Or, so he told a touring Methodist minister, Henry Whitely, a visitor to Jamaica in 1832—the year before the passage of the Slavery Abolition Act at Westminster. Whitely wrote an account of his six-week visit to the island in a pamphlet published by the Anti-Slavery Society. This is Whitely’s report of his meeting with Senator Harris’s beloved ancestor. 

 ‘The same day I dined in St. Ann’s Bay, on board the vessel I arrived in, in company with several colonists, among whom was Mr. Hamilton Brown, representative for the parish of St. Ann in the Colonial Assembly. Some reference having been made to the new Order in Council, I was rather startled to hear that gentleman swear by his maker that that Order should never be adopted in Jamaica; nor would the planters of Jamaica, he said, permit the interference of the Home Government with their slaves in any shape. A great deal was said by him and others present about the happiness and comfort enjoyed by the slaves, and of the many advantages possessed by them of which the poor in England were destitute.’ 

Brown cordially loathed the great British anti-slavery campaigner, William Wilberforce, accusing him of being a ‘hypocrite’ and claiming Wilberforce was in possession of a ‘cloven foot’. This was, presumably, a diabolical reference designed to get them out of their seats in the Jamaican House of Assembly, where he proudly represented the (all white) electorate of St. Ann’s parish for twenty-two years. 

Henry Whitely was a tad sceptical of Brown’s rose-tinted view of the fringe benefits of enslavement, and his scepticism was soon justified. Travelling through the plantations of the island he witnessed a group of slaves manuring sugar canes while an overseer laid into them with a cart whip. 

‘It appeared to me disgustingly dirty work; for the moisture from the manure was dripping through the baskets, and running down the bodies of the negroes. This sight annoyed me considerably, and raised some doubts as to the preferable condition of West India slaves to factory children … the thundering crack of the cart whip, sounding in my ears as I rode along, excited feelings of a very unpleasant description.’

Whitely also witnessed the flogging of young girls – lashed forty to fifty times with a horsewhip for such capital crimes as tardiness.

Brown was obviously a sentimentalist (as long as your skin wasn’t black) because he called one of his twenty-five estates after the county of his birth (ahhh!) He gave his own first name to the town of Hamilton in Jamaica but that was obviously considered disrespectful and something of a liberty, because it was later changed to the more deferential Brown’s Town.  

 Then, showing himself to be a true Irish patriot, after the emancipation of West Indian slaves, he sought to entice Irish people to come and settle in Jamaica. In 1835 he sent his ship, the James Ray, to Ballymoney, Co. Antrim to collect 121 Irish migrants and planted them around him in St. Anns. Those were followed, in 1836, by 185 more of his fellow countrymen. The avowed intention of this assisted migration project was to ensure that freed slaves did not acquire land in Jamaica. However, the scheme came to an end after the arrival of the second batch of Irish emigrants when it was alleged back in cynical old Ireland that they were simply being brought to the West Indies to replace the freed slaves. 

This Irish charmer continued to live in the West Indies long after the emancipation of his slaves. He died there in 1845 at the age of 68. He appears to have expired after being thrown from his carriage. The Ku Klux Klan sent flowers. Actually, that’s not true, as they didn’t exist at the time. But it sounds about right. 

Of course, culture wars being what they are, the madder breed of Republican has frequently attempted to weaponise Hamilton Brown against Senator Harris. The headline in the right-wing website ‘Red State’ is fairly typical – “When Will Race-Baiting Kamala Harris Acknowledge She is a Descendant of a Slave Owner?”

Allow me to offered a considered and carefully thought out rebuttal to that particular line of argument. 

What a load of abject nutjob bollocks! 

I hope the above is a sufficiently reflective and intellectual riposte. If not, it is probably worth noting that most black people who are descended from slave owners are also descended from slaves. There were few idyllic marriages between plantation owners and their chattels. Most of the non-white children of slave owners came into being as a result of rape or extra-marital ‘relationships’. Right wing culture warriors might give some thought to the power dynamic of those ‘relationships’.

No, I don’t think they will either. 

The fact-checking website www.snopes.com has been unable to establish whether Donald Harris is correct in his assertion that he and his daughter Kamala are descended from Hamilton Brown. But, based on Brown’s ownership of over 1000 of his fellow human beings, and his recorded opinions on the issue of slavery, it is unlikely that Senator Harris, as U.S. Vice President, would be tempted over to Antrim to check out her Irish roots, not even with the prospect of a side trip to the Giant’s Causeway.

Maybe just give her some shamrock in March 2021, along with an apology.

Trump can’t hack a postal ballot – but, then again, neither can Russia.

To post or not to post?

There’s a moment in the Orson Welles classic film Citizen Kane when the main character, Charles Foster Kane— based on the newspaper and business tycoon William Randolph Hearst—is running for election as governor of New York. The editor of his New York daily has prepared two early editions, one of which will appear the morning after the result of the election is announced. One reads ‘KANE ELECTED’ the other reads ‘FRAUD AT THE POLLS’. With a long face he is forced to go with the latter when Kane loses (so did Hearst, in 1906). 

It appears from his tweet today—the one about the possibility of postponing the November Presidential election, not the 87 other ones—(this was written before midnight so that figure might no longer be accurate!)—that President Donald J. Trump is of a similar mindset. Either he will defeat Joe Biden in November, or he will have been the victim of massive electoral fraud, most of it coming via mail ballots.

So, what does history tell us about a) the postponement of a US Presidential election and b) US electoral fraud.

The first thing to be reiterated is that the President cannot release his inner spider yet again and sign another Executive Order to postpone/cancel/exclude/deport/pardon a Presidential election. He may be able to rename Mars as Planet Trump (I’m not sure if that actually happened but I saw it on Twitter) but according to Article 2 Clause 4 of something called the United States Constitution (apparently we have one too, but the UK hasn’t gotten around to it yet) … 

‘The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.’

Americans seem to have adopted the standardised spelling of ‘choosing’ since the 18th century, so it’s probably only a matter of time before they overcome their loathing of the letter ‘U’ and begin to spell ‘labour’ ‘flavour’ and ‘savour’ properly as well. 

As to the date, the American election has not always taken place on the first Tuesday after the 1 November. That practice began on 7 November 1848  when the USA staged the first national election that was held on the same day in every state. Zachary Taylor became President. (Me neither!) The 1848 election date was based on a snappily titled 1845 law – ‘An act to establish a uniform time for holding elections of electors of President and Vice President in all the states of the Union’ which did exactly what it said on the tin and settled on ‘the Tuesday next after the first Monday in November’. That is the way it was been ever since.  

Any change would require an amendment to that act, approved by both Houses of Congress. To the Democrats, who have a majority in the House of  Representatives, it is an non-runner, dead duck, non-starter, ‘just ain’t gonna happen’ –  and even Republicans in the Senate have no stomach for such a move. Trump Enabler in Chief, Mitch McConnell has described the date as ‘set in stone’[1]

And even if it was postponed when would the USA go for a reset? No election (bar the first in 1788) has failed to take place in the final full year of a presidential term. This is not the Olympic games. Any postponement beyond the end of December would require a constitutional amendment. This would have to be ratified by 38 of 50 states!  If you’ve been watching Mrs. America on the BBC you’ll have some idea how difficult it is to pass a constitutional amendment. (Spoiler Alert – I’ve probably just given away the fact that the Equal Rights Amendment was never enshrined in the US Constitution. Oops! Sorry).  

And it’s not as if American Presidential elections haven’t gone ahead in spite of a few minor difficulties!

In 1812 James Madison and DeWitt Clinton had to face the electorate despite the USA being in the middle of a war with their former colonisers, the British. In 1864 Abraham Lincoln had to fight an election against one of his former Generals, George McClellan even though the Civil War was still raging.

Lincoln and McClellan in more convivial times

According to Michael Burlingame, Professor emeritus of History, Connecticut College:

‘No other democratic nation had ever conducted a national election during times of war. And while there was some talk of postponing the election, it was never given serious consideration, even when Lincoln thought that he would lose.’[2]  Lincoln’s chances weren’t helped by a rebellion in his own party that threw up a charismatic third candidate in John C. Fremont. But the Lincoln Project was ultimately successful (fnarr, fnarr!)

Not to mention the fact that FDR was re-elected, for the seventeenth time, in 1944 during a global conflict. 

Then there is the mail / absentee voting issue.

Is voting by mail more liable to produce a fraudulent result? Well, nearly 1 in 4 voters cast 2016 presidential ballots that way, and Trump won (albeit losing the popular vote by a narrow 3,000,000 margin). Being permitted to post off your ballot in October or November, rather than appearing in person to pull the lever, would make it less likely that electors would be required to die for their country, of Covid-19. It would also be more difficult for Cozy Bears, APT29 or whatever those talented Russian hackers are calling themselves now, to game the system. Not even Vladimir Putin is patient enough to stand over every postal voter and steal their ballot. 

They’ve been voting by mail in Oregon since 1998 and out of over 15 million ballots cast the conservative Heritage Foundation detected fourteen cases of fraud.[3] That’s a rate of .0000009%. A study that was funded by by those celebrated bastions of Marxist/Leninism, the Carnegie Corporation of New York and the Knight Foundation, found an “infinitesimal” number of fraud cases in elections between 2000 and 2012. They detected a total of 2,068 illicit ballots cast, amounting to one in every 15 million eligible voters.[4] And those were not all mail-in voters, some of the fraud took place at election booths. 

If about 150,000,000 Americans vote on 3 November that’s a potential incidence of around 10 fraudulent ballots nationwide. I’m sure the Democrats would be happy to ease President Trump’s mind by giving him a ten vote start? He can even take them all in Wisconsin or Minnesota if that helps.

BTW – President Trump himself voted by mail during New York City’s mayoral election in 2017. He cast an absentee ballot the following year, and again used a mail ballot in Florida’s primary election in 2020.[5] What’s that old saw about sauce, goose and ganders again? So, unless Democratic members of the House of Representatives are accidentally locked in a broom cupboard before a vote on electoral postponement, the poll will proceed as planned on 3 November. 

Incidentally, the last time a Presidential election was held on 3 November was 1988, when a Republican incumbent (George H.W. Bush) was defeated after serving a single term in the White House. Just sayin’ 

Caveat – all sources cited here are, of course, fake news outlets, like Snopes.com, Reuters and NPR. So, you can safely take it all with a pinch of salt. 


[1] https://www.npr.org/2020/07/30/897111969/trump-floats-delaying-the-election-it-would-require-a-change-in-law

[2] https://millercenter.org/president/lincoln/campaigns-and-elections

[3] https://www.reuters.com/article/us-usa-election-vote-by-mail-explainer-idUSKBN2482SA

[4] https://www.snopes.com/fact-check/mail-in-ballot-voter-fraud/

[5] https://www.snopes.com/fact-check/mail-in-ballot-voter-fraud/