by Nona Blyth Cloud

(Column originally published at Morning Open Thread on Daily Kos)

Justice Antonin Scalia (front row, second from left) is dead.

I assume that the President will do his job and nominate a new Justice. Then the great battle will begin between the Senate and the President over majority control of the Supreme Court. That it will be long and ugly is certain. What the outcome will be is not.

Almost 10% of the Federal District Court Judgeships are vacant, many because the Republican-dominated Senate has tied up the President’s nominees, derailing the consent process.

President Obama has appointed 132 female judges – more than any President to date. But to obtain true gender diversity, the number of women in the federal judiciary, including the Supreme Court, must be increased. 

• Thirty-three percent of active United States district (or trial) court judges are women. But there are still 6 district courts around the country where there has never been a female judge.

For women of color, the numbers are even smaller.

• There are 81 women of color serving as active federal judges across the country, including 42 African-American women, 26 Hispanic women, 10 Asian-American women, one Native American woman, one woman of Hispanic and Asian descent, and one woman of Hispanic and African-American descent.
• There are only 12 women of color on the U.S. courts of appeals.  Five of those women sit on the Ninth Circuit Court of Appeals, two sit on the DC Circuit, and one woman of color sits on each of the First, Fourth, Sixth, Seventh Circuits and Federal Circuit. Therefore, there are seven federal courts of appeals without a single active minority woman judge.

There are 66 vacancies on the federal district and appellate courts, and two of those vacancies are in courts where there has never been a female judge. Additionally, twenty-one of the vacancies are for seats formerly held by female judges.

But trying to get any worthy candidate through this confirmation process may be like trying to “pass a camel through the eye of a needle.”

…

Given the current climate of the Senate, I doubt that Ruth Bader Ginsburg would be confirmed now.

The question put to her about “judicial activism” by Senator Grassley (R-IOWA) with his smug condescension is so beyond ironic.

…

U.S. Supreme Court Justice RUTH BADER GINSBURG says that she is often asked how many women on the Supreme Court would be “enough.”

Her answer? “When all nine are women.”

“For most of the country’s history, there were nine and they were all men. Nobody thought that was strange,” she explained.

Now imagine if the Notorious RBG were Chief Justice with Justices Sonia Sotomayor and Elena Kagan — and the other 6 were all liberal and progressive women of color…

But can any Left-of-Center nominee be judged fairly by these Extreme-Right Senators?

On Presidents’ Day, we honored George Washington and Abraham Lincoln. It is enlightening to see how much the Supreme Court has changed since they were in office:

As the first President, George Washington was responsible for appointing the entire Supreme Court, which he said “must be regarded as the keystone of our political fabric.”

The first group of Washington’s appointments — two justices of the Supreme Court of the United States and ten district court judges — began service two days after Congress passed the Judiciary Act of 1789, which formally established the federal judiciary. The duties of the original Supreme Court Justices included circuit riding.

Washington appointed John Jay as Chief Justice.

The Court’s business through its first three years primarily involved the establishment of rules and procedure; reading of commissions and admission of attorneys to the bar; and the Justices’ duties in “riding circuit,” or presiding over cases in the circuit courts of the various federal judicial districts.

Jay established an early precedent for the Court’s independence in 1790, when Treasury Secretary Alexander Hamilton wrote to Jay requesting the Court’s endorsement of legislation that would assume the debts of the states. Jay replied that the Court’s business was restricted to ruling on the constitutionality of cases being tried before it and refused to allow it to take a position either for or against the legislation.

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President Abraham Lincoln appointed five Justices to the United State Supreme Court during a critical period in American history. When he assumed the presidency in 1861 the Court had only one vacancy. However, Justice McLean soon died and Justice Campbell resigned to join the Southern Confederacy.

Lincoln did not fill any positions until 1862, when he nominated Noah Swayne, Samuel Miller, and David Davis. In 1863 Stephen Field became the tenth Justice after Congress expanded the Court. When Chief Justice Roger Taney died in 1864, Lincoln appointed his former Treasury Secretary, Salmon Portland Chase, to succeed him.

During this period Justices received an annual salary of $6,000 and were expected to travel the circuit to hear federal cases. They met for only one term a year in the U.S. Capitol.

Among the cases that came before the Chase court were Ex parte McCardle, 74 U.S. 506 (1869), that examined the extent of Supreme Court jurisdiction to review decisions of lower courts under federal statutory law;  Paul v. Virginia, 75 US 168 (1869), a US corporate law case, which held that a corporation is not a citizen within the meaning of the Privileges and Immunities Clause of the 14th Amendment, and held that “issuing a policy of insurance is not a transaction of commerce,” effectively removing the business of insurance beyond the legislative reach of Congress; and Bradwell v. State of Illinois, 83 U.S. 130 (1873), where the court sided with the state of Illinois in denying Myra Colby Bradwell had the right to be admitted to the Illinois bar in accordance with a state statute that permitted any adult of good character and with sufficient training to be admitted. Because she was a woman, however, the state supreme court denied her admission, noting that the “strife” of the bar would surely destroy femininity, and that as a married woman, she could not enter into any legal contracts, as lawyers do in their profession. Bradwell appealed the decision to the Supreme Court, arguing that her right to practice law was protected by the Privileges and Immunities clause of the 14th Amendment. In an 8-1 ruling, the court ruled that the Privileges and Immunities Clause did not include the right to practice a profession, so it was properly regulable by the states. (The Illinois Supreme Court finally granted her a law license in Illinois in 1890, and the United States Supreme Court two years later, shortly before her death.)

In spite of the Supreme Court ruling against her, Myra Bradwell (February 12, 1831 – February 14, 1894) founded and was editor-publisher of the Chicago Legal News, a weekly legal newspaper which became the most important legal publication in the western United States, and worked tirelessly for reforms giving married women the right to keep their own wages, protecting the rights of widows, and extending suffrage and full legal equality to women.

The Women Lawyers Association of Los Angeles established the Myra Bradwell Award in 1993 to honor “a law firm, corporate or government office, or other entity that has been exemplary in promoting and advancing women lawyers and issues important to women.” 

Sources:

• National Women’s Law Center/Judges and Courts/Judicial Nominations — Fact Sheet — Women in the Federal Judiciary: Still A Long Way to Go — nwlc.org/…
• George Washington and the Supreme Court — www.mountvernon.org/…
• John Jay — https://en.wikipedia.org/…
• Abraham Lincoln’s Supreme Court — www.abrahamlincolnonline.org/…
• Salmon Portland Chase — en.wikipedia.org/…
• Myra Bradwell — www.wlala.org/…
  www.nwhp.org/…