It’s a simple fact that the makeup of the Supreme Court has been a far deeper concern of the far right in this country than the far left. This is primarily because the Warren Court made several rulings that accomplished progressive goals that the Congress itself was incapable of accomplishing on its own. This is the origin of the Culture Wars in a political sense, and of the term of derision: legislating from the bench. Obviously, the most striking item of contention has been the legal right to a first trimester abortion. But desegregation, contraceptives, prayer in school, affirmative action and other issues have gone against conservatives’ wishes at the Supreme Court. The desire to see these rulings reversed is what drives the Republican base to feel so passionately about the makeup of the Supreme Court. While the left may care just as deeply about these issues, there is less energy behind maintaining the status quo than there is in changing it. For this reason, any highly contentious battle over the replacement for John Paul Stevens is bound to fire up the GOP’s base more than the Democrats’.
That is one reason why President Obama will be tempted to avoid a fight. How to avoid a fight?
Salon just spoke with Curt Levey, the director of the Committee for Justice, a GOP group originally founded to push George W. Bush’s court nominees, about how Republicans might react to the selection of a new justice. His message? There will be “an interesting conformation fight this summer…unless [President Obama] nominates someone very moderate.”
For Levey, “very moderate” means someone like Judge Merrick Garland, a Clinton-appointee to the United State Court of Appeals for the District of Columbia.
Want slightly more of a fight?
As solicitor general since mid-March, Kagan has taken the lead in invoking the “state secrets” doctrine in litigation challenging the NSA’s surveillance program—“Obama Administration Embraces Bush Position on Warrantless Wiretapping and Secrecy,” reads the title of the Electronic Frontier Foundation’s press release. Kagan has surely been a major player in the Administration’s decision to continue to use military commissions to try detainees and in its about-face on releasing photos of alleged prisoner abuse. She’s fought a court ruling that would extend habeas rights to detainees being held by the U.S. military at Bagram air base in Afghanistan. Kagan also recently filed a brief urging the Supreme Court to overrule a 1986 precedent that expanded the rights of suspects in criminal custody. Kagan’s leading law-review article, “Presidential Administration” (114 Harv. L. Rev. 2245 (2001)), offers a broad defense of presidential authority and explores ways that courts might promote that authority. So there’s ample reason for folks on the Left on national-security issues to be concerned about her possible nomination.
Want a huge fight?
No judge whom I’m aware of is more extreme than Wood on abortion. Her defiance of the Supreme Court’s mandate in NOW v. Scheidler (and her incurring successive 8-1 and 8-0 reversals by the Court) ought alone to be disqualifying. In addition, Wood has (in dissent) voted to strike down state laws banning partial-birth abortion and (again in dissent) voted to strike down an Indiana informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey.
Anyone to the left of Wood might actually provoke the first Senate filibuster of a SCOTUS nominee since Abe Fortas in 1968.
Ultimately, the makeup of the Court is too important to shy away from a fight the administration can win. But we should not delude ourselves that there will be any short-term political benefit from a knockdown-drag out-brawl. It will just be a fundraising boon to a Republican Party that has everything going for it but the money they need to compete everywhere.
Yep, Obama’s just going to have to nominate someone who’s really really really moderate. Flamingly centrist. Radically mainstream. Someone like…Thomas Friedman.
heh.
The Mustache of Understanding in black robes.
He doesn’t have to nominate a flaming centrist. But we should realize that an actual liberal is going to be a huge fight than comes with a cost. I’m willing to pay that cost on one condition. That Obama wins.
I don’t want any noble defeats, a la Robert Bork.
We have money too, and a drag-down fight by the Republican Senate is also likely to stimulate contributions to Democratic organizations and candidates.
Bring it on. We’re permitting the minority to rule the legislative process, and that has got to stop.
Completely agree. Elections have consequences. This pre-compromising crap has got to stop.
Thank you. You made the point that drives me nuts by its absence. Why are we so sure that only the wingnuts can rev up the base on this issue? An ugly confirmation fight has just as much upside for us as it does for the crazies.
I like what Ed Kilgore & co. are recommending over at Dem Strategist:
http://www.thedemocraticstrategist.org/strategist/2010/04/urgent_a_tds_strategy_memo_on.php
I’d still like to see him nominate Hillary or Anita Hill, just to make the GOP’s head explode…
I still put in my two cents — that it isn’t going to be a judge (and though Kagan meets that criterion, I don’t think she’ll get it either). Not now. Look for a white, protestant male — from outside the judiciary; maybe politics, maybe business, maybe academia. A great mind, but not necessarily a jurist. Obama is, I think, going to mix it up.
The first reasonable suggestion to circumvent the filibuster, a clean humanitarian of any race or religion, who cares about the way the Constitution affects ordinary human beings. A nonlawyer, perhaps, but an activist. That plays well with Obama’s intent to make the law work hence the Court for the average person.
“very moderate” just means Republican or right wing and we already have enough of those on the Court.
Guess the President has to appoint someone of moderate political instincts. Still, it is a tempting thought to put forward a progressive, or least a liberal, to galvanize his own supporters. Maybe, the right thing might also be the most expedient thing. There are times in the destiny of a nation when it is imperative to do the right thing. Is it one of those times right now?
The Republicans or right wing is today dependent upon racism and religious extremism to attain the majorities needed to rule, to rule for the wealthy, more strict constructionists.
Moderate, on the other hand, is what the Republicans are asking for, not what they would like. It is their time to hold line until another George Bush can get elected.
Maybe it is a good time for a filibuster, with the baseball season underway.
Why does he have to? Why should we care how big a fight it is? We’re in the minority on the court now anyway. If the process takes forever, any decisions will have the taint of a partial vote and be easier to overturn. Where is the imperative here?
Does a SC Justice have to be a lawyer, no but yes and this from Wikipedia:
“The technical answer is no, there are no Constitutional or legislative qualifications for Supreme Court justices. So theoretically, if appointed by the President and confirmed by the Senate, a 5 year-old Brazilian boy who doesn’t speak English could serve on the Supreme Court. (Unlike Representatives, Senators, President and Vice-President, all of whom have Constitutional limitations involving residency, age, and citizenship.)
As a practical matter, I don’t believe any non-lawyers have been appointed to the Supreme Court (although FDR supposedly considered it). There have been some lawyers who were never judges appointed, most famously, Earl Warren. Eisenhower appointed him to the Supreme Court in 1953 to thank him for his support in CA during the Republican primaries. Warren was an ex-state Attorney General and an extremely popular governor of CA, but he had never been a judge. He went on to become one of the most active Chief Justices ever, greatly expanding legal protections, especially for minorities (e.g. Brown v. Board of Education, 1954) and criminal defendants (Miranda v. Arizona, 1966).
All 111 past and present Supreme Court justices have been lawyers, although those who served in the early days of the Court learned the law by reading and apprenticing with more experienced attorneys because there were few law schools back then.”
The nominee will therefore be the Michigan governor, Jennifer M. Granholm.
As my governor, I attest to the fact that she spent the last six or seven years wasting her time trying to reduce the state deficit. Republicans actually control the state government and refuse to touch the third rail and raise taxes. We are getting by on the reduction of state workers and penalizing nicotine addicts. Her tenure has therefore been a waste of a good liberal mind.
track record of compromise and capitulation is any indication, he’ll end up replacing Stevens with a center-right nominee who will then be hailed as an outstanding progressive by many on this site.
There’s a reason why Elena Kagan is considered the front-runner.
Was Sotomayor center right ?
Thanks. I was about to make that comment. Although many pavlovian anti-Obama democrats like to say she is center right. lol
Ya mean like approving of escalation in Afghanistan, imprisonment without charges, execution of Americans without trial and a watered down, crappy health care plan?
What does any of that have to do with supreme court picks and Sotomayor?
Nothing, but it’s utterly predictable. I laugh at how predictable some posters are.
You mean like reading only what you want to instead of actually whats going on? :rolls eyes: Must be nice to lead such a balanced life.
they’re not all pavlovian anti-Obama democrats. some are repub trolls
Do you have a response to anything I actually wrote?
In fact, I left out off-shore drilling.
I fear that you have hit the nail on the head. It will hurt some feelings.
Once again the entire body politic will be shoved further to the right. In my youth the arch political enemies of this left-winger were Richard Nixon and Barry Goldwater. Too many liberals today tend to be to the right of these esteemed political cut-throats.
Obama getting the Peace Prize while having assassination lists of both foreign and American civilian targets is ludicrous.
Think about this not as something political, though it will have those ramifications. Obama is going to do what he thinks is right for the direction he wants the court to go … and that is not too far to the left. I believe he is truly a conservative in his conception of the court, wanting it to protect the unprotected, building on precedent, interpreting a living document. This is just the kind of justice that the Republicans say that they want, but will rail against anyhow, since they are determined to make a fight regardless. If you think Obama is going to swing way to the “left” in an appointee, ever, you are misreading what he has ever/always said. He’s likely to get to replace Justice Ginsburg, too, and the same questions will arise. So don’t set yourselves up for a disappointment by looking too far left. Look for wisdom, intelligence, compassion. That’s your candidate.
Exactly. This is one case where “nonpartisan” actually has merit. I don’t care if Obama names a flaming leftie because I believe any decent and thoughtful justice will come down on our side. I just hope it’s not Kagan. She may have just been doing her job in supporting indefinite detention and the other “war”-related civil liberties outrages, but that disqualifies her just as much as it would John Yoo. She’s the textbook example of why just being “liberal” is not nearly enough.
Fascinating.
Don’t you all see, the crackers have guns, they’re aggrieved. They’re able to show up in modest numbers at political events, armed with intemperate and incoherent rhetoric. We should condescend to their self-righteous fury in a sensibly moderate way.
IF Barack Obama wants to break with his emerging reputation for being a right-wing pandering authoritarian he could nominate to the Supreme Court Moritz College of Law Ohio State University Professor Michelle Alexander.
The New Jim Crow: Mass Incarceration in the Age of Colorblindness
Interesting how the GOP wants to keep selecting Supreme Court Justices.
If Wood is unacceptably to the left, who are the folks who would provoke the first filibuster since Abe Fortas in 1968? But Abe Fortas was confirmed (although he resigned under a cloud a year later.
Name me the names of some progressives qualified to be on the Supreme Court bench.
BTW, it is thirty years past time for the left to be focused on the Supreme Court. There are still three compromised justices on the Supreme Court — Kennedy, Scalia, and Thomas. And two of them are likely unqualified in their understanding of the Constitution to be on the Court. If there is any argument against Specter being re-elected, I can think of none better than how he got Clarence Thomas confirmed.
Somebody on npr just claimed that the “business community” is excited about Wood because they think she’d understand how finance works. I was only half listening, so have no sense of how reliable the claim is. I’ll try to find it when time permits.
Care to elaborate on why those three justices are compromised and not the others? Seems to me Roberts is impeachable for lying his ass off to Congress about how he strictly rules on the basis of precedent.
Bush v. Gore
If you want to get into lying to Congress, you can add Roberts and Alito.
Forgot to ask: is there anything that would make filibuster reform not apply to judicial appointments? I think there’s a good argument to be made that nominations should be treated differently than legislation, but is that the case now? If Dems really plan to push through filibuster modifications it seems like it would have been better to wait until next year — unless you think the GOP will control the Senate then.
Boy, I just couldn’t read this any differently. Obama has to satisfy the base with this pick or his chances in 2012 are over. Further, given the nature of GOP tactics this cycle, I think we can count on them to go full metal wingnut and scare the living shit out of the casual voter, stimulating netroots fundraising in the process. There is simply nothing to be gained from trying to dodge a fight, because the fight is coming the right even if he nominates Bork hisownself.
I think Obama will go with a woman and dare Limbaugh and Beck to alienate half the electorate with sexist attacks. I also think that, in their hubris, they will happily oblige. To me, this has GOP electoral disaster written all over it.
I agree that Republicans are going to demonize any Obama nominee even if they don’t filibuster (and Republicans not filibustering would be a shock). I don’t agree with the idea that this nomination will have any bearing on the 2012 presidential election. Presidential elections are largely about the national mood, so if the economy’s going good in 2012, Obama’s got a good chance of winning. If we find ourselves in a double-dip recession, he won’t stand a snowball’s chance in hell. Remember, a lot more than just the base turns out in presidential years, unlike midterms.
If Obama puts the fifth vote against Roe on the bench, women will stay home in 2012. He really has no political choice on this.
Is there anyone out there who is to the left of William O. Douglas that Obama might appoint just to get the shitstorm going? If he’s going to be accused of it, he might as well do it.
do you mean having first candidate with a candidate to the left of william o douglas, then a second candidate?
Barack Obama will do NOTHING to get into a fight with the right-wing. they shoot at people and blow up buildings.
On the other hand Obama knows that the social justice core of the Democratic Party will wring its hands shake its head and move onto to whatever the next excuse needed is to re-elect Barack Obama.
Obama will nominate yet another authoritarian in the mold of Sonia Sotomayor and the liberal/progressive/left of America will not look past the most superficial facts of sex and race.
Here is a distinguished jurist and a social justice advocate who can also satisfy Democrats as to sex and race:
Michelle Alexander for U.S. Supreme Court Justice
What makes Sotomayor an authoritarian ? No joke. Serious question
Follow the link above and find out. She has always been a prosecutor judge with only one side to criminal justice issues, the police.
I did read that link. I also went to scotusblog to read up on Sotomayor. I’m not sure ” authoritarian” is the word I’d use.
However, they are hearing arguments for Dillon vs United States, which challenges federal crack and cocaine sentencing guidelines. The ruling should come in June. We’ll see what her opinion is then.
the correct term is “gender”, as in “gender and race”.
You misspelled Alito. Hope this helps.
lol! you mean we won’t be able to get Alito’s wife to cry on our candidate’s behalf if/when the repugs on the committee ask and actual question??? (one of the most outrageous judiciary hearing incidents in recent years, imo. nothing comes close to Condi Rice’s “that was history” comment, however).
just feel I should put in a disclaimer re: Rice’s testimony
So? Maybe we/he should just capitulate and ask Jim deMint who to nominate?
i want him to nominate bill clinton
or a black muslim lesbian….do we have any of those around that are qualified?
mostly i just want obama to lead and stop playing footsie with congress whether its republican or democrat.
They’re already talking filibuster, so they intend to filibuster regardless. Otherwise, they would wait till the nominee had been announced, so they could be “shocked, shocked” at her or his extremism. And it is consistent with the strategy Frum got fired for questioning. So avoiding a fight is off the table. The question is can Obama break a filibuster?
He probably can if the Dems stay united, but this, not health care, is where a progressive block strategy makes sense. On health care, it was must-pass for us, but not for the centrists. However, a new justice will be appointed…. but perhaps not immediately. Stevens is not going to step down until his replacement is in place. If Obama nominates Merrick or Kagen, we should push Sanders, Feingold, Franken, etc. to join a Republican filibuster. There are probably only a couple of R votes in play, so the progressives can counteract them. Meanwhile, as long as the appointment doesn’t take place, we keep Stevens: fine by us, but not by the conservatives.
Worst case analysis: the filibuster lasts the session. At that point, the argument for repeal of the filibuster is air-tight, and we can get a straight vote.
The difference between this and a Bork situation is thatt the public is mostly on our side, so the debate helps our side. Towards that end, it is important to make sure bank regulation comes up. And the one area where the public may be against us – ciivl liberties for terror suspects – the Repubs now have a problem. Many of them have been screaming about FEMA camps and a socialist police state. This will actually make it hard for them to support a candidate who would give Obama the power of indefinite detention. Cheney may demand it of him, but Cheney need not fear Beck or the teabaggers.