Supreme Court: Playing for Time vs. Advise and Consent

Inside the Supreme Court of the United States. Photo by Timothy R. Johnson and Jerry Goldman. Creative Commons Attribution-Share Alike 3.0 Unported.
Inside the Supreme Court of the United States. Photo by Timothy R. Johnson and Jerry Goldman. Creative Commons Attribution-Share Alike 3.0 Unported.

“The American people,” US Senate Majority Leader Mitch McConnell (R-KY) said in 2016, “should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” McConnell took that position in response to President Barack Obama’s nomination of Merrick Garland to replace the late Antonin Scalia.

While he subsequently offered other justifications, revolving around whether or not the same party controls both the Senate and the White House (“[s]ince the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year”), the top political selling point of argument was clear:

With a presidential election less than a year away, better to await the voters’ decision on who should appoint a new member of the Supreme Court.

Now, with the death of  Associate Justice Ruth Bader Ginsburg, McConnell’s political tune shifts its main melody to those other excuses. The new chorus: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

The Democrats have changed their tune too. They were all for a vote to confirm Merrick Garland in 2016. They’re dead set against a vote to confirm whomever President Donald Trump nominates in 2020.

Democratic arguments against a swift replacement for Ginsburg are pretty weak as well.

First, they say Ginsburg expressed a “final wish” that her replacement wait until after the election. That’s a strange one. In what universe do dying (or retiring) Supreme Court justices get to dictate the terms of their replacement?

Second, they raise the usual hue and cry: A Republican-appointed court might overturn Roe v. Wade. That claim ignores some inconvenient facts.

Such as that Roe v. Wade was written by a Republican-appointed justice. And that all five Republican-appointed justices on the Court at that time voted for it. And that half of the four Democrat-appointed justices voted against it. And that subsequent Republican-majority Courts have preserved it. Republican politicians talk a great anti-Roe game, but at the judicial level Republicans created Roe and Republicans have perpetuated Roe.

The first Supreme Court justice, John Jay, was nominated by President George Washington on September 24, 1789. He was confirmed by the US Senate two days later. Twelve years after that, the Senate dragged its feet for a whole week before confirming Chief Justice John Marshall.

These days, far more is both knowable and known about prospective Supreme Court nominees well in advance of their nominations. Yet the process has mutated from “advise and consent” to “multi-month political campaign.”

There’s no taking politics out of the matter, but the whole thing could be better handled with a White House policy of nominating replacements within seven days of a death or retirement, and a Senate rule requiring an up-or-down confirmation vote within seven days of nomination. Let the voters judge what was done, not who might do what.

Instead, the legacy of Ruth Bader Ginsburg is yet another bear-on-a-unicycle ring added to an already far too crazy 2020 political circus.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.


Testing, Testing, One, Two, Zero

Photo of ACT test prep volumes by dorante10. Creative Commons Attribution-Share Alike 4.0 International license.

For this fall’s college freshmen, standardized tests weren’t as crucial in determining their selection as they would have been before 2020. Hundreds of educational institutions waived exam requirements when COVID prevented on-site administration. Some even excised the tests from the application process entirely. Yet Jeffrey Selingo reports that “something strange happened: Teenagers continued to sign up for the exams” (“The SAT and the ACT Will Probably Survive the Pandemic—Thanks to Students,” The Atlantic, September 16).

This devotion to getting an edge into colleges has remained persistent even a year after the Operation Varsity Blues investigation revealed how much of the admission criteria were being exaggerated or outright fabricated. With colleges replacing their on-campus offerings by remote video instruction — and online course materials like those long made accessible for free by initiatives like MIT’s OpenCourseWare — elite colleges have much less to offer in return for the tens of thousands in annual tuition they still charge. How has their draw remained so persistent?

Maybe it’s less that their wares are uniquely valuable than that they’ve closed off alternatives. Kevin Carey explains in The End of College that “the higher-education industry receives hundreds of billions of dollars every year in the form of direct appropriations, tax preferences, and subsidies for their customers in the form of government scholarships and guaranteed student loans. The only way to get that money is to be an accredited college. And the accreditation system is controlled by the existing colleges themselves, who set the standards for which organizations are eligible for public funds.”

Standardized tests provide the accreditation monopoly with the data the top-down system needs to function. As anthropologist James C. Scott observes, “those at the greatest distance from ground zero of the classroom” particularly benefit from having “an index, however invalid, of comparative productivity and a powerful incentive system to impose their pedagogical plans.”

When Steven Levy’s Hackers: Heroes of the Computer Revolution became one of the earliest journalistic accounts of the culture of computer programmers, Levy noted their insistence on evaluating each other by the quality of their programs, eschewing what they considered “bogus criteria such as degrees, age, race, or position.” In an addendum to a 2010 reissue of his book, Levy found many of its personalities had retained that spirit, as expressed by Bill Gates: “If you want to hire an engineer, look at the guy’s code. That’s all. If he hasn’t written a lot of code, don’t hire him.”

Higher learning — and its certification — can follow computer power’s path out of elite institutions to everyday ubiquity. If its participants can win the freedom to choose, share and exchange, the process can become more equitable as well as less bogus.

The Garrison Center’s Joel Schlosberg wrote his SAT essay on freedom in the science fiction of Eric Frank Russell.


  1. “Testing, Testing, One, Two, Zero” by Joel Schlosberg, The Citizen [Chicago, IL], September 11, 2020 (both web and print)
  2. “Testing, testing, one, two, zero” by Joel Schlosberg, The Lebanon, Indiana Reporter, September 24, 2020
  3. “Testing, Testing, One, Two, Zero,” by Joel Schlosberg, OpEdNews, September 25, 2020
  4. “Despite not needing to, college-bound students flock to ACTs, SATs,” by Joel Schlosberg, Greater Southwest News-Herald [Summit, IL], September 25, 2020
  5. “Testing, Testing, One, Two, Zero,” by Joel Schlosberg, Ventura County, California Citizens Journal, September 26, 2020

I Watched Cuties so You Wouldn’t Have to (But You Should)

Poster for the film <em>Cuties</em>. Reproduced a lower resolution under fair use guidelines.
Poster for the film Cuties. Reproduced at lower resolution under fair use guidelines.

A brigade of pearl-clutching, virtue-signaling, cancel-culture keyboard warriors wants you to know that Cuties (Mignonnes — it’s actually a French film) is a bad, bad movie that no one should watch and that Netflix should immediately remove from its lineup.

According to US Senator Ted Cruz (R-TX) Cuties may be, and according to US Representative Tulsi Gabbard (D-HI) it actually is, child porn. It sexualizes young girls and, per Gabbard, will “whet the appetite of pedophiles & help fuel the child sex trafficking trade.”

In reality, Cuties is the moving story of an 11-year-old girl attempting to grow up too fast, at the most intractably confusing age, and across the lines dividing two conflicting cultures. There’s nothing remotely pornographic about it, and the “sexualization” part of the story line isn’t even close to approvingly wrought.

Amy (played by Fathia Youssouf), her mother, and her brother are Senegalese immigrants to France.

Culture Number One: As a young Muslim girl, she’s already being groomed by the family matriarch (a great-aunt) for the day when she’ll find herself swaddled head to toe in white and presented to a man as his property. Her father, not physically present in the film, is expected to arrive shortly from Senegal, bringing with him a second bride (to Amy’s, and her mother’s, distress).

Culture Number Two: As a young student in the secular French school system, Amy perceives the currency of “maturity” with her peers as encompassing how little clothing and how much makeup one can wear, and especially how suggestively one can pose. She discovers, finds herself intrigued by, and through sheer force of will makes herself part of, a dance troupe of other 11-year-olds who call themselves (surprise) “The Cuties.”

Naturally, family and cultural conflict ensue, as does adolescent acting out of various kinds.

Fortunately there’s a happy ending, which I’ll refrain from spoiling with detail but give you this simple gloss on: Amy ultimately decides it’s better to just roll with being eleven years old, both sets of cultural expectations be damned.

Cuties isn’t a comfortable movie. It’s not supposed to be a comfortable movie. Nor is it supposed to be titillating or obscene, and it isn’t those things either.

Is it a great film? That’s for you to decide, and I hope you’ll do so yourself after watching it instead of letting Ted Cruz or Tulsi Gabbard decide for you sight unseen.

In fact, I’m grateful to Cruz, Gabbard, and their “I saw Sarah Good with the Devil!” hangers-on for inspiring ME to watch it. If there’s any redeeming aspect to cancel culture (of either political wing), it’s that convenient and self-serving public outrage serves as a  reasonably reliable predictor of what might be worthwhile.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.