United States Supreme Court Justice Clarence Thomas was nominated by President George H.W. Bush as the replacement for Black Justice Thurgood Marshall. Thomas is the Court’s longest serving and oldest justice; he will be 75 years old in June 2023 and has been on the Court since 1991. Thomas was chosen by President Bush, a conservative Republican, because he was Black. Could Thomas have been elected to the court in a fair and open national election? I doubt it, as his nomination hearing in the Senate was, as Thomas described it, “a high-tech lynching” and his fate with the majority white electorate would have been questionable. In 1991, of the 100 senators not one was Black. Thomas was known to be archly conservative and strongly anti-abortion. Although a Black man, Thomas was denigrated by Anita Hill, a Black female attorney, during his confirmation hearing.
Thurgood Marshall was known to be a highly activist liberal lawyer whose most famous case before the Supreme Court as an attorney was the 1954 Supreme Court decision of Brown v. Board of Education of Topeka that reversed over fifty years of “Separate but Equal” precedent. Marshall was nominated to the Court in 1967 by Democrat Lyndon B. Johnson. Johnson chose Marshall mainly because he was Black.
Both Marshall and Thomas had other qualifications to be on the Court but their race was the determinative factor. Would Marshall have been elected to the Court in a fair and open national election? I doubt it as even though his nomination hearing before the Senate was not as fractious as Thomas’, he was still vigorously opposed by several white segregationist senators. Marshall was seen as a likely activist liberal jurist and history proved that correct. White voters most likely would have refused to elect him to the Court.
Marshall and Thomas, the first Black members of the Court, and Sandra Day O’Conner, the first female member confirmed in 1981, would have almost certainly not been elected to the Court in a fair and open national election. But fortunately, times are changing, too slowly for many, but still greatly changing from the times when women could not vote and Blacks had to ride in the back of the bus.
So, if I do not believe that women, Blacks and “others” might historically have had little chance in fair and open Supreme Court elections until ceilings began to crack and color lines began to blur in the 1960’s, why do I now call for federal judges to be elected and have term limits? Because true democracy is our best hope to hasten the promise of America to the great majority of marginalized citizens who have been denied it. As that icon of the 60’s, Bob Dylan, sang:
“Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
The battle outside ragin’
Will soon shake your windows
And rattle your walls
For the times they are a-changing.”
Of course, for those who have, “… suffered the slings and arrows of outrageous fortune,” change is never large enough or fast enough. However, if we mark America’s progress toward all people being equal from the date of our Constitution in 1789, hope is not hollow. Blacks who were slaves and women who could not vote in 1789 can now serve on the Supreme Court. We still have not had a Native American Supreme Court justice however they are no longer merely “Indians not taxed” for census purposes but are now citizens. Perhaps a free and fair national election would produce an Indian justice. Since the Native American voter base is so small, it is unlikely any president would nominate an Indian. However, a Native American could file to run for a seat on the Court and today maybe have a fighting chance.
The white men who wrote and have long interpreted the Constitution have not ceded their preferred positions without constant pressure. On the other hand, much has changed in over 200 years though there is still much more change needed. Old methods of autocracy masquerading as democracy will not bring opportunity for all to participate in the promises of our Constitution. Our current system of selecting members of the Court has produced two Black men and one Black woman as well as five white women and 107 white men. The system has long out-lived any efficacy it might have once had.
Our country no longer even feigns belief the Court is not a highly partisan political entity whose decisions often reek of prejudice. America should be for all citizens. We should not have an entire branch of our government in the strangle hold of a very few people, mainly one president and 100 senators. If, as many suspect, the justices on the Supreme Court are merely politicians in robes, why not make the political selection process a democratic one and let all citizens have a say? Surely fair and free national elections could do no worse than the “inside baseball” of a few, mainly white, mainly male politicians. And while we are at it, let’s institute term limits for all federal judges so we can actually live the democracy we now only pay lip service to when it comes to our Judicial Branch?