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Friday, July 6, 2018

Is Trump practicing age discrimination in his Supreme Court pick?

I generally don't write a piece outside of my areas of focus unless I really have something new to say, and so I have to say that with all the chatter, all the time now, on all the cable news channels about Trump's upcoming Supreme Court pick, I haven't heard anybody raise the question of age discrimination, which is illegal, even though Trump has promised to pick a justice who can serve for forty or forty-five years. One has to wonder if Trump hasn't already violated EEOC rules that say: "The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements." If you do the math, it becomes clear that any jurist over the age of fifty-five is immediately put out of the running -- purely because of age! This is a violation of the principle, if not the letter, of anti-age discrimination civil rights laws.

While the law may say that an employer should not practice age discrimination, it is clear that nature does; an attractive model is likely to be younger; a wise judge is likely to be older. Everybody understands these truisms. Similarly, it was for good reason that the founding fathers did specifically demand age discrimination in the constitution for the job of president. He or she must be 35 or order.

This makes it even stranger that Trump is vowing to discriminate in favor of younger candidates when it comes to picking a Supreme Court justice. While the constitution didn't specify a lower age limit for this job, it certainly didn't declare an upper limit either. It is clear that, within very broad limits, the president should be picking from the best, and often they are the most experienced, jurists for the job. Even a candidate in good health in her 60s can be expected to serve twenty or more years on the bench. While the Supreme Court is no place for term limits, a little turnover is probably a healthy thing.

What is Trump's motivation for this age discrimination? In announcing it he said:
“We have to pick one that’s going to be there for 40 years, 45 years, we need intellect, we need so many things. So many elements go into picking a Supreme Court justice.”
It should trouble everyone that intellect is second on the president's list of qualifications. Of course a great Supreme Court justice must have great intellect, but short of senility, age is no enemy of intellect. In fact, it tends to develop with age and experience. That is why the constitution applies an age test to protect the country from a president that is too immature. Now, one can only wish that the founding fathers had found a way to write a mental-age test into the constitution.

Beyond intellect, there are many other elements, as Trump said, that go into a great justice. So, why arbitrarily limit the field from the outset with an upper-limit age test? Trump's motivations have the transparency of a child's because they are entirely selfish. Trump sees it as a question of his legacy. He sees his Supreme Court justices as creating a "Trump Court." They are like so many new Trump Towers he is putting up in Washington,DC and he wants them to be up as long as possible. That is why youth is the first requirement on his list. Its probably really that simple. Actually, youth may be Trump's only real requirement, and to assure GOP support in congress, he is willing to farm out the vetting of the other requirements to the Federalist Society. They will pick somebody who will vote to overturn Roe v Wade, maybe even someone who will reinstate Plessy v Ferguson, which has never been explicitly overruled.

The sad truth is that justice is the last thing on Trump's mind when he thinks about a Supreme Court justice.

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