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The Constitution was written eleven years after the Declaration of Independence. The Revolutionary War followed the Declaration, but the Constitution was written by some very smart and well-read men who poured their considerable intellect and training into designing a representative government that would guide a young democracy into a successful future.

Thomas Jefferson was in Paris during the Constitutional convention, but he wrote a letter to James Madison saying that one generation has no right to bind the next, and therefore, he suggested, that the constitution should become null and void in 19 years and a new one be written by a new generation.

That, of course, has never happened. The constitution has been amended but never replaced. I would like to suggest today that Thomas Jefferson was right, and he was right for reasons he never would have imagined.

The nation in the late 18th century was already deeply divided over the issue of slavery. There were also literate women who were advocating for an equal role in society and government. Still, they had no idea how the technology of combat and communication would evolve. They hadn’t even invented bullets back then, let alone assault rifles.

Our generation, our century, is bound by a constitution from a time so distant from our own that it simply does not fit. It now prevents our country from entering the 21st century with the same solutions to problems that our peers in western democracies have managed very successfully and which we seem not to even consider.

George W. Bush and Donald Trump only won the Electoral College vote

I am going to try to make this brief, but while there is much to be praised in the democracy our founders birthed, there are ways in which it no longer allows democracy to flourish and, more importantly, to evolve to meet the needs of our day.

I am going to point to just a few issues. First, we are the only country with an electoral college. The majority of other countries simply directly elect their head of state so that the will of the majority makes the decision. Our electoral college, once a compromise to give more political power to slave holding states, is not just an anachronism, it has become a noose around our necks, electing presidents who did not win a majority of votes, forcing the majority to live with a president selected by a minority of voters.

If we had the kind of elections held in every other free nation of the world, George W. Bush and Donald Trump would never have been president.

I am sure that I don’t have to spell it out for you, but Bush appointed Alito and Roberts, Trump appointed Gorsuch, Kavanaugh, and Barrett, and there, my friends, is the conservative Supreme Court majority that now places most Americans at a distance from their own government. I would also add as a second criticism of our constitution that Supreme Court justices should not be lifetime appointments. Ten years would be a long term in such a powerful position. More than that and, consider, if Clarence Thomas had been forced to retire from the court in 2001, how much better off would the world be right now?

It has been suggested that we set the term of any Supreme Court Justice at 18 years, allowing every president to appoint two justices in every four-year presidential term. In that way, we would maintain 9 justices but spread the selection of judges evenly among each president. For example, Jimmy Carter and Donald Trump were both one term presidents but Carter didn’t get to appoint any justices and Trump appointed three, giving us the lopsided court we have now.

Minority Rule

The third issue that I will take with our constitution is the provision that awards two senators to every state. Again, this gives a great deal of weight to votes cast in low population states and devalues the votes in high population states.

There are 40 million people in California, but California gets only two seats in the senate. Two, but if you added the populations of the 20 lowest population states:

  1. Wyoming
  2. Vermont
  3. Alaska
  4. North Dakota
  5. South Dakota
  6. Delaware
  7. Rhode Island
  8. Montana
  9. Maine
  10. New Hampshire
  11. Hawaii
  12. West Virginia
  13. Idaho
  14. Nebraska
  15. New Mexico
  16. Kansas
  17. Mississippi
  18. Arkansas
  19. Iowa
  20. Nevada 

you still don’t come up with as many voters as California and that group of states has 40 senators. 

This is not representative government. This gives tremendous weight to rural and predictably much more conservative voters than the people who live in more populous states. And this constitutional flaw, men and women, is how we get some of the most embarrassing members of the Senate and they are the ones who then approve embarrassing Supreme Court nominees. Each senator from California ostensibly represents 20 million voters, while each senator from Wyoming represents about 250 thousand voters. This is so wrong it verges on being crazy.

The United States is now primarily governed by a small minority of conservative rural voters who can bind the hundreds of millions of people in more populous states to exposure to guns, and they can decide who you can marry, who you can love, and when you can have children. They prevent meaningful environmental reform, energy innovation, and social progress. I know this is a lot in a short amount of time to consider but, if you take the time to check my facts, you will find that I am correct about all of this.

In the past weeks, the Supreme Court has ruled against a hundred-year-old law in New York against carrying guns in public. They have struck down the fifty-year-old precedent of Roe v Wade, which guaranteed women the right to manage their own reproductive life, and they have overturned a sixty-year-old restriction against publicly led prayer in public schools. 

In Clarence Thomas’ concurrence with the decision overturning Roe v Wade, he made it clear that he would also like to overturn the 2015 decision to grant the right for same sex couples to marry (Obergefell v. Hodges), and even to restore restrictions on the kind of birth control methods available to married women and to restrict the distribution of birth control methods at all to unmarried women, and to revoke the right of consenting adults to have a sexual relationship . . . presumably aimed at gay couples but, it is impossible to be sure. I would remind you that in 1991, Anita Hill tried to warn us about this guy.

How can the Supreme Court be so out of touch with the American people and our values? The first and most obvious reason is that the majority has been appointed by Republican presidents who were seeking to curry favor with that 20% of conservative, rural, and religiously bigoted voters that they need to ever win an election.

Presidents choose jurists to nominate to the court specifically because they have a history of representing the thinking of the current president’s most supportive constituency. And, clearly, since it is a lifetime appointment, presidents have tended to nominate younger and younger jurists to extend their influence into the future. For example, Justice Clarence Thomas was nominated by President George H. W. Bush over 30 years ago. The unelected Thomas has had more influence on the shape of modern America than President Bush.

We Need More than Black Faces in High Places

I am no fan of identity politics but in a country as diverse as ours is, you could not claim that a court comprised of nine white men could have the depth and breadth of vision that we have now in a more diverse court. I was still in grade school when we had our first black justice on the court. I was in seminary when we got our first woman justice, but today our Supreme Court has a fairly representative blend of men and women, blacks, whites, and Latinx members. So, “hurray” for gender and race diversity. Also, no one can claim that there is a “black” way of being a jurist, especially if you consider the differences between Clarence Thomas and our soon to be appointed, first black woman on the court, Ketanji Brown Jackson.

But when it comes to religion and education, I feel like the court just doesn’t look like America at all. The low hanging fruit here is in the realm of education. Everyone on the court has a law degree from either Harvard or Yale with the sole exception being Amy Coney Barrett who attended Notre Dame. There are 1.3 million licensed attorneys in America but less than one half of one percent of them attended either Harvard or Yale Law Schools and yet they represent nearly 90% of the members of the court. Both are great law schools, to be sure, and yet, are they the only great law schools in America? Is there a bit of intellectual incest going on here? 

I appreciate my own time at Harvard but comparing my classes there to my classes at Vanderbilt, I’m not sure that you could reasonably say that there was a huge qualitative superiority at either school. But you can say that one is in the south and one is in the north, and we all know that there are dramatic differences in perspective in those regions of the country. For the same reasons that we have tried to make the court a representative blend of races and genders, shouldn’t we also consider things like the region of the country they have lived in and the school where they studied law?

And what is more important, some of my undergraduate school professors in state universities, who are more likely to be in touch with a broader segment of America, were brilliant and very helpful. Still, as with the matter of race, you can’t say that Harvard graduates are a legal plenum. After all, Justices Roberts, Breyer, Kagen, Gorsuch, and soon to be seated, Justice Jackson are all Harvard grads and there is a lot of daylight between those five people. Again, I have nothing against Harvard and Yale but couldn’t the court benefit from a little less intellectual inbreeding?

7 of the 9 Supreme Court Justices are Catholic

When it comes to matters of religious affiliation, I am finding myself to be very nervously leaning towards thinking that the Catholic influence is so overstated that it is pushing the court towards a view of abortion that sounds more like the college of cardinals in the Vatican than the values of the American people. 

About 20% of Americans identify as being Catholic but of our current nine justices, seven of them are Catholic. Only about 2% of Americans are Jewish but we currently have two Jewish justices and nearly 50% of Americans are Protestant and until Judge Jackson is seated, none of our justices are Protestant. Granted, not all of the Catholic justices voted to overturn Roe v Wade but all of the justices who did vote to overturn this landmark decision were Catholic (a bit of a caveat for Gorsuch who was raised Catholic but currently attends an Episcopal Church). Perhaps the larger issue is, which ones were appointed by Democrat presidents, and which were Republican appointments, but still, the religious affiliation screams for consideration even though the Catholics who voted to overturn Roe v Wade were, admittedly, all appointed by Republican presidents.

For the sake of full disclosure, I did publish a critical article about Amy Coney Barrett, a Pentecostal Catholic, when she was first nominated because she seemed to me to have been specifically selected to cast this vote to overturn Roe v Wade. That article earned me a blistering rebuke from the local Catholic Bishop who, for the first time in my life, accused me of being anti-Catholic. In my defense, I was right about Barrett and given the way that I am feeling today, I am starting to think that the bishop might have been right about me.

The Supreme Court, in its most pure form, is intended to make decisions about the meaning and application of the United States’ Constitution. Roe v Wade was decided on a basis of a right to privacy which, legally speaking, may have been overreaching in the first place but, let’s face it, the constitution doesn’t offer any more guidance on abortion than the Bible has to say about the internet. In the matter of abortion, the constitution becomes nothing more than the black robes in which the justices are wrapped when they make decisions about what is right and what is wrong.

Abortion is not so much a matter of jurisprudence as it is a concern of that branch of philosophy that deals with ethics because the primary issue that divides those who are pro-choice from those who are anti-abortion is the question of when a fetus becomes a person, or, at least, gains the legal rights of a person. Lawyers are ill-equipped to make that philosophical distinction but then, like everything else in philosophy, nothing is certain or permanent about ethics.

A Religious Minority  Rules

What we should be able to say with confidence is that debate about the point at which a fetus becomes a person with protected civil rights should not be left up to any religion and certainly not to a minority religion. There is a credible debate to be had which, oddly enough, never seems to take center stage. What we have seen in the past generation is the manipulation of the political system so that a minority religious view can be institutionalized into our nation’s laws and that is something that should never happen in America.

Ethics cannot be accurately determined simply by assuming that the majority opinion is correct, but you cannot seriously debate an ethical conclusion without considering the majority opinion. Thankfully, we didn’t rely on a majority opinion to end slavery or to add that first Black person or first woman to the Supreme Court, but it is significant, to the degree that abortion laws affect all of us, that the majority view among American citizens is that abortion should be a legal option in most cases for all women.

It should also be evident that abortion laws are much more relevant to women of childbearing age than they are to anyone else, even though the whole matter of birth is crucial to the whole of the human race, it is still women at that stage of life who must place their very lives at risk to bear a child.

You can have an opinion, even a strong desire, and maybe even some vested interest, but that doesn’t equate to authority. For example, last year, my neighbor informed me that she planned to build a privacy fence that would take in about three feet from the back of my property. She even added that she already had the approval of the neighborhood association to build said fence, on my property. In this matter, my opinion in opposition to the construction of the fence had precedence over my neighbor’s personal desires or even my neighborhood association’s collective view. Because my property is clearly defined, I have sovereignty over it, to the degree that I can prevent my neighbor from building on it. My community, however, retains the right to prevent me from disposing of toxic chemicals in my yard because the whole of the community has a vested interest in not allowing toxins in the water or air of our area. My neighborhood association can also prevent me from adding a storage building to my back yard that does not meet with the approval of our architecture committee. They have that authority because I have ipso facto agreed to grant them that authority by buying into this neighborhood. You see, there are many issues about which you may have passionate opinions or concrete religious views but neither of those necessarily give you standing in the decision making about the issue.

Now, when “Jane Doe” finds that she is pregnant and she does not want to carry that pregnancy to term, who has standing or a vested interest to such a degree that we are obligated to include them in that decision? If Jane is a Catholic, she may want to consider the teachings of her faith community but still, the church does not have standing any more than I have a vote in the color that some young people put in their hair (pink, purple, orange, really, must you?). I have an opinion, one that is best kept to myself, but I do not get a vote. 

In the contract that any of us have with a community of faith, we retain governance of our own bodies, regardless of the opinion of the faith leaders or community. The Catholic Church may even have a vested interest in the decision as the growth of any religion’s membership is more dependent on the birth rate amongst its members than it is on conversion, but still, even if the Catholic Church stands to benefit from Jane Doe having a baby, their interest is insufficient to merit a vote in whether she carries her pregnancy to term or not. And for them to even try to extend such governance of the majority who are not Catholic is tantamount to the federal government establishing a national religion and that is entirely out of bounds in America.

The man who provided the sperm in Jane Doe’s current pregnancy may have a religious, philosophical, family, or, by reason of the prospect of child support payments or household expenses, a fiscal vested interest in Jane’s choice, but because the fetus is, by necessity, attached to Jane’s body, the man in this situation has no sovereignty, even if his personal finances and other emotional and faith issues are strongly held.

Opinions should not become the law of the land. As Queen Calanthe famously says in the Netflix series, “The Witcher,” “I bow to no law made by men who never bore a child.”

The larger philosophical question is, “How did abortion ever become a matter of legal dispute?” I had prostate surgery last year and I didn’t have to consult any government or legal authority prior to having that procedure because, obviously, it was no one’s business to comment upon. It was a decision made between me and my physician. Even if that surgery might have some impact on my ability to reproduce, it just isn’t a matter for government oversight. Why would we have ever assumed that the reproductive life of any woman was a matter calling for a governmental decision?

But how might the government or the community legitimately claim standing on the abortion issue? The only standing is based on the personhood of the fetus to be aborted. We would all agree that a mother could not legally abort a child on their third or fourth birthday, no matter how much she might regret having given birth.

A child, post birth, cannot be seen as being disposable. Some of the most conservative anti-abortion activists claim to feel that a fertilized egg has as much personhood as a three-year-old child has, making such contraceptive devices as an IUD untenable. Some of the most conservative Catholics even object to the use of a condom, which prevents fertilization, because they believe that the sex act either does or does not result in a pregnancy and childbirth based on the will of God and that the human actors in sex should not try to intervene upon God’s will with either a birth control pill, a condom, an IUD and certainly not a “morning after” pill.

While that religious view seems to be comprised of balloon juice to me, there are those who sincerely hold this view and, as is apparent, religious views are rarely subject to review by objective facts or critical thinking. Still, it should be evident that we do not live in a theocracy and so the truth claims made purely on unsubstantiated religious beliefs cannot be granted standing in matters of law. Any individual is free to make religious values choices about their own reproductive life, diet, divorce, etc. But if a religious entity seeks to impose their values on others, well, we tried that and we still call that time “The Dark Ages.”

However, we do have a real problem in determining when a fetus, a “potential” person, becomes sufficiently an actual person to have a legal right to life, liberty, and the pursuit of happiness. Just as I can, even as a member of clergy, reject the standing of any faith community in making that determination, I also cannot, with any degree of certainty, say that a medical doctor, a scientist, a neurologist, or a biologist has adequate expertise to dictate the definition of personhood.

These disciplines are a part of the conversation, but they cannot be granted decision making authority. Again, this is more the arena of philosophy but, once again, if you are looking for a definitive answer from philosophy, you are setting yourself up for disappointment, until you can accept the paradoxical reality that social norms change over time and in different circumstances.

Granting that neither science or religion has the authority to dictate an answer in this consideration, we are left to put the society as a whole on the spot to try to make some collective determination (hopefully in consultation with relevant professional insights). We use the term “viability” to describe the point at which a fetus can survive outside the womb without an umbilical connection to the birthing mother. That point has been moved by advances in neonatal care from 26 weeks to potentially 22 and maybe even 20 weeks. But, generally speaking, an unborn child must be umbilically connected to its mother until the fourth or fifth month of gestation.

Can a credible argument be made for a fetus to claim personhood prior to the earliest realistic point of viability? Sadly, when you just throw that question out to the public, there will be those who will point to signs of fetal pain or to the appearance of a fetus at various stages of gestation. Obviously, at 3 months, the fetus does not have a lot of human-like appearance but a fetus at 5 months certainly does, but can mere appearance be determinative in this discussion no matter how many people want to make it an emotive argument? In philosophy, we call this problem argumentum ad passions, literally “argument from emotion.” This appeal is often used when there is a stark lack of evidence to support a position. It can be powerful, but it is not referenced as a logical fallacy for no reason.

That a fetus might have tiny footprints may pull at our heartstrings but this has no relationship to personhood.

You know, a newborn baby, after nine months of gestation, has no teeth, it cannot walk or talk, and it sure can’t get a job or a driver’s license and yet we would almost universally agree on the infant’s personhood. However, we all recognize its potential, in most cases, to become more recognizable both as a person and a member of society.

Who Decides When Personhood Begins?

While we cannot turn to a physician, a biologist, a philosopher, a priest, or a judge for a definitive answer, sadly, although they have no special expertise, because of our history of legislation and litigation, at some point, a judge will have to render at least a temporary ruling on the matter. And, of course, at this writing, the Supreme Court has hinted at a belief that personhood is present in a fetus long before it has become viable outside of the womb. Most of the citizens of this country do not agree with them. Hence, we need a judicial system that is guided more by the values of the society than by the minority view of their faith community.

Now, I think it is important to grant that even the smallest minority opinion on this matter has a plausible demand to be considered. The argument from viability has a lot of weight to it because prior to that point, the fetus must be physically attached to the pregnant woman and therefore causes harm or risk to the woman and certainly limits her free exercise of her own life as it would be if she were unencumbered with pregnancy.

A newborn baby is not viable in the sense that they cannot survive without a great deal of care, but that care is no longer specific to one person whose body is literally their host. But, as noted earlier, while the baby is by virtual consensus mundi, a person, this status is predicated primarily upon their potential to manifest more and more aspects of personhood over time. But, of course, the same can be said in many ways of a fetus in the second or third month of gestation. Even for those of us who would not consider that fetus to be a person, still, we cannot say that it does not have potential to become a person.

It is something of a stretch but, it could also be said, that a young man and a young woman standing in line at Starbucks waiting to order their morning coffee, by virtue of the proximity of their reproductive organs to one another, have the potential of creating a fetus that could become a person. Thankfully, even the most conservative religious fanatic would not see the pheromones in the air around this hypothetical pair of strangers as being a person but, from the potential of a mating pair, to a couple engaging in sex, to a newly fertilized egg implanted in the wall of a woman’s uterus, there is the possibility of personhood looming in an undefined future.

Where the debate about abortion rights remains fluid is precisely at this point. When must we, as a society, claim to have standing in the life of the fetus/person that would override the prerogative of the pregnant woman to terminate the pregnancy/life? At what point does the expectant woman’s private and personal rights necessarily become subject to the ethics of the surrounding society expressed in law?

Somewhere between the couple in line at Starbucks and a baby that is now viable outside of its mother’s womb is a cutoff point where a woman can no longer make a personal choice to terminate the pregnancy. The Catholic Bishop might put that at the point of copulation and most of us would put it right at the point of viability. The ferocity of the public debate is that for many of the people who are closer to the Catholic Bishop’s perspective, there is relatively little daylight between an abortion clinic and the gas chambers at Auschwitz. Simply holding such an extreme view should not give them permission to dictate social norms, but they have to be considered and given a bit of airtime in the public deliberation but maybe only slightly more than the weight of my opinion about young people’s choice of hair color; but let’s not bring that up again.

The thing we must understand about ethics is that it is a moving target. We can consider scientific information, we can weigh the insights of psychology, and even of anthropology, but, in the end, we will be forming a general consensus that will not be permanent.

Consider how old a person must be in order to get married without parental consent. In the early 7th century, Muhammad, when he was in his 50’s, married a six-year-old girl. There were those among his peers who objected, and Muhammad did not sexually consummate the marriage until Aisha was nine years old, but in our universe, that is still horrible. In the late 16th century, Shakespeare plausibly wrote in his fiction play, Romeo and Juliet, about a powerful romance that involved a 13-year-old girl whose father became angry because he had arranged a marriage for her to someone other than Romeo. So, an acceptable age of marriage 1300 years ago might have been before a girl was 10 years old, slightly older in Shakespeare’s England, nine centuries later. Now, in the United States, anyone can legally marry without parental consent at the age of 18 in 49 states. . . in Nebraska, you must be 19. I’m sure there is a story there, but I have no idea what it is.

We may all agree that not very many 18-year-old people, or 19 year old people for that matter, have any business getting married but we know that there is some point at which, for good or ill, people have a right to make that decision for themselves and for now, almost everywhere, that age is set at 18. But you cannot say that someone who is 17 years, 11 months, and 3 weeks old is completely incapable of marriage and that everyone who is 18 years old is entirely capable of managing marriage. We have just agreed upon a number fully accepting that reasonable arguments can be made for older or younger and that every individual case is different.

Just as there is with the legal drinking age. Fifty years ago, the United States decided to peg it at 21 but not many countries agree with us. Most countries put it at 18 and a few put it at 16. These are choices made in different cultures for different reasons. None of these numbers are permanent, even if people think that they are, I assure you, they will change.

We have every reason to believe that this is also true in the matter of abortion. For fifty years, women have had a constitutionally protected right to govern their own reproductive life up to a certain point of gestation and that point has differed from state to state but until last week, a woman’s civil rights were protected by the federal government. That is much less so today than it was a week ago. While we may have erred on the side of granting permission for late term abortions at some point, we are certainly now being forced to err on the side of granting personhood to a pea sized clump of cells.

Rights have been taken away from millions of American women by a majority of the members of the Supreme Court whose reasons seem to be largely informed by both conservative Catholic faith and a concern about the wishes of conservative Republican voters, neither of which, I am suggesting, have nearly as much standing as both women of childbearing age or the majority of American voters.

As previously noted, there are no laws that govern a man’s body, at least not unless Clarence Thomas gets his way and manages to criminalize gay sex or possibly even sex among the unmarried. There are not laws that govern a woman’s body when she is not pregnant. For example, a woman can choose to get a tubal ligation without any legal entanglements. It is only the matter of pregnancy that raises the whole private medical matter v public civil rights concern.

Every society adjusts its collective views on moral norms. In overturning Roe v Wade, an illegitimate majority on the Supreme Court cut out the public’s role in discerning our norms of ethics and forced a standard on this nation of more than 300 million people without consulting us or even considering our values.

So, I conclude that the government of the United States does not adequately represent the people of the United States and the gulf between the two demands correction. As previously stated, I believe that the best path to making this correction would be to provide for direct election of our president, a distribution of senate seats based on population and not on state boundaries, term limits for Supreme Court Justices, and a more equitable division of appointment of justices granting each presidential administration the same number of seats on the court.

How might some of these matters be addressed? A constitutional convention would be the most effective and second to that would be a series of amendments to our 240-year-old constitution. Either of those options are very difficult because both require a political party or many states to willingly participate in losing a great deal of power. A convention can be called for, or an amendment can be proposed, either by a ¾ vote of both houses of Congress or by a ¾ vote of the state legislatures in the country. Low population states are unlikely to give up the power they have through our electoral college system, nor would they happily sacrifice seats in the Senate. Republicans would not vote to change a system which, for two generations, has allowed them to hold office without a popular vote and to exercise minority control over the majority’s moral will. Still, a constitutional convention is what I would wish for as a best possible solution; it just has little to no chance of happening.

It has been popularly suggested that the President and the Congress work together, while they can, to expand the number of seats on the Supreme Court. This is the easiest and quickest way to effect real change on the court and it has been done in the past, after all, the constitution never states how many seats must exist on the high court. Still, as important as it is today, it would open the flood gates to even more expansion of the court the next time that a Republican administration is in the White House and the legislature. Granted, the Republican members of the Senate, under Mitch McConnell’s leadership, stole a nomination from Barack Obama and promised to block any nomination a hypothetical administration of Hillary Clinton might have appointed. So, Republicans have already demonstrated that they are willing to throw ethics to the wind to grab power in the judicial system but expanding the number of seats on the court would be an invitation to further partisan interference with the work of the Supreme Court. We want to stabilize the court, not turn it into a trophy to be passed back and forth between political parties.

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The solution that appeals to my mind, but which is rarely mentioned is the possibility of removing a justice from the court. Even a life-time appointment can be ended with proper cause.

Removing Justices for Egregious Failings

And here I need to ask you to allow me a quick footnote. As previously noted, in philosophy, we have identified several common mistakes of logic in argumentation. We give them Latin names to make them sound more important the way that advertisers use actors with British accents to make them sound more believable. But one of the most common is called ad hominem. It means literally, “attack the person” rather than the argument they present. One of the smartest members of congress, the member of congress with some of the best preparation for the job and the passion to raise the most important issues is the New York congresswoman, Alexandria Ocasio Cortez. Millionaire talking heads from Fox to MSNBC like to try to dismiss her well-reasoned, well researched, and insightful ideas by simply saying that she is too radical. That is an ad hominem fallacy that any 18-year-old freshman student in philosophy should be able to spot and dismiss immediately but, in these days, when critical thinking is an endangered skill, simple name calling is enough to throw the simple minded off the sequence of an important argument.

AOC has been vocal about the obvious need to rebalance the court by removing justices who are guilty of egregious professional failings. Clarence Thomas is at the top of that list because of his repeated refusal to recuse himself in cases that directly involved his wife’s probably illegal political behavior. He has literally voted on cases in which he is attempting to provide cover for his own wife. It would be difficult to have a more obvious and unacceptable conflict of interest. For very many reasons, I would say that Clarence Thomas is unfit to sit on the Supreme Court, but this single reason is so obvious that it shouldn’t take more than five minutes in each house to reach a decision to impeach him

The constitution provides for the impeachment of Supreme Court justices in exactly the same way that a president is impeached. The House has to draft and pass articles of impeachment, by a simple majority, and then a trial is held in the Senate. Thomas has violated a fundamental ethical rule for any judge and so, when you are talking about a Supreme Court justice, the standard can only be, in a word, supreme. He needs to go.

AOC has also pointed out exactly what I pointed out a couple of weeks ago, that Justices Kavanaugh, Gorsuch, and Barrett, all lied under oath in their Senate hearings when they were seeking Senate approval to be seated on the court. Each was specifically asked if they would try to overturn Roe v Wade and each described that landmark decision as settled law and following the principle of stare decisis, another important sounding Latin term that means that you let the decision stand, because it has become a part of the country’s understanding of what is and what is not law.

These three Trump appointees were, we believe, specifically selected to overturn Roe. They swore under oath that they would not, and then, they did exactly what they had sworn that they would not. If I lied in a job interview, I would have reason to expect to be fired when my employer discovered the unethical deception. Why would a Supreme Court justice be held to a lower standard than someone who was applying to work in the food court in the mall?

I think that we made a horrible mistake by being so passive when Mitch McConnell literally and unethically stole an appointment from President Obama and held it for Trump. Of course, “no drama Obama” wasn’t much help in beating the drum at the time. Now, I believe, public political pressure must be maintained to impeach and remove justices Thomas, Kavanagh, Gorsuch, and Barrett from the court, giving President Biden the opportunity to appoint four justices who will be more responsive to the ethical values of the American people. And as he selects these four new justices, I would suggest that consideration be given to those who claim no religious affiliation or at the very least, are not Catholics, and to judges who have law degrees from one of the best law schools in the nation other than Harvard and Yale. We want a Supreme Court that is comprised of the best educated, most moral, and well qualified judges and we need a court that looks like and responds to America.