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Sunday, May 24, 2009

Obama and The Supremes: hit or miss?

The political spin amounting to a tornado is beginning in the imminent choice of a replacement for Justice Souter on the Supreme Court.

The Right righteously demands a non-activist moderate instead of a radical liberal. Coming from the same shrill voices that applauded the nominations of Clarence Thomas, Antonin Scalia, John Roberts and Sam Alito, who were intended to and have tilted the Court sharply to the right for the coming decades, amounts to monumental chutzpah.

None of these men is moderate when it comes to the critical close calls (the 5-4 votes) on social issues that have the most impact on our country. On issues such as racial and gender equality, access to the courts, executive vs. legislative power, federalism, government vs. business interests, criminal rights, all four of these men always — I mean always — find rationales to serve their radical biased personal views against abortion but for capital punishment, against expansion of civil liberties and for expansion of corporate freedom, against regulation to redress inequality and for limiting access to justice for individuals.

They mouth the words of respect for precedent unless they can find intellectually dubious paths around it. They decry judicial activism that overturns laws that express the will of The People unless they disagree with such laws and can find excuses to overturn them by resorting to a strict construction of the Constitution.

Reaction from The Left has been predictably disorganized. The most vocal have been particular one issue interest groups : environment, labor, press and so on. The loudest voices have called for an "identity" choice, i.e, a woman, Hispanic, or other minority to make the Court look more like America – as if that is a good thing in and of itself.

My view is that choosing on those bases could be disastrous. Clarence Thomas and Sandra Day O’Connor are examples. Single issue candidates might be just as bad. In my legal experience, for instance, those only interested in womens’ issues are often disinterested in criminal rights for others, especially where women are the perceived victims. The same is true about any single interest group.

On the other hand, Obama has made comments that might presage other problems. He wants someone who, though intelligently grounded in The Law, is also compassionate, possesses common sense, and understands the struggles of people in the real world. This scares the indignant intellects of The Right, who read liberal judicial activist into the definition.

It scares me for a different reason. I remember California’s recall of state Supreme Court justices, including Chief Justice Rose Bird, on the complaint that she and her allies on the Court imposed their personal views against capital punishment to overturn numerous death sentences. The recall campaign was actually funded by corporate interests that were more concerned with the Bird Court’s bias against them. A succession of conservative governors — Republican (Dukmejian and Wilson) and Democrat (Grey Davis) made appointments that turned the Court around. The result pleased corporate lawyers. The California Supreme Court now affirms virtually all death sentences, overtly favoring compassion for crime victims over the perceived sympathy for criminals of the previous Court. The conservative justices are no less result oriented than those they replaced. They just support their rulings with different reasons.

The lesson I learn reading these cases over the last thirty years is that "compassion" and "common sense" is just as subjective and useless a standard as "strict construction" and "judicial activism".

Obama’s dilemma is that he is intellectually honest, respectful of the Constitution, and a decent person. I fear that he will not be as ruthless in his choice as W. and his neo-cons were. Obama is not likely to insist on a litmus test that includes ideological orthodoxy. In other words, Obama will not choose someone as far to the Left as those chosen for the Right.

Pundits and Court historians like to observe that presidents have been often surprised and disappointed by their choices. True, Eisenhower regretted Warren, FDR regretted Frankfurter. But modern appointments have not provided such shocks. Vetting is much more thorough; no longer are justices seen as rewards for lengthy service. Disgusted by the Warren experience and Roe v. Wade, the Right has been vigilant about critical issues and disappointments have been rare exceptions. Nixon misfired on Blackmun and Powell, but he satisfied the Right with Renquist who Reagan elevated to Chief.

The truth is that Obama’s first choice — and any he is likely to make in this or his next term — are not likely to radically alter the Rightward lean of the Supreme Court for the foreseeable future. Except for Scalia (73), the other sure reactionary votes are in their prime: Thomas (61), Alito (59), Roberts (54). John Paul Stevens (89), Ginsburg (76 , with cancer), and Breyer (71) make up the usual opposition to the four votes from the unified Right. Souter, now retired, sometimes joined the three moderates. The so-called swing vote is usually cast by Anthony Kennedy (73), a Reagan appointee.

So replacement of Souter with a certain vote on the Left will not change the Court’s math. But a mistaken choice — a stealth conservative on issues other than the one the judge has clearly in focus, a weak personality who cannot influence others on the Court, or an older person who will retire too soon — would be a tragedy.


  1. Since this post, Sonia Sotomayor has been nominated. I am fearful that she is exactly the Identity" choice who would not make a difference in the issues I am concerned with: the protection of individual liberties against the police power of the state and federal government. The NRA is worried about her stance on the 2nd Amendment. I'm worried about the 4th, 5th, 6th and 8th. Her record as prosecutor, trial and appellate judge doesn't reveal someone who will guard those rights. Hope I'm wrong.

  2. Two more recent Supreme Court opinions show how important the personal views of Justices are. In one, the court ruled 8-1 that a strip search of a school girl for drugs went too far. Thomas dissented, believing that school authorities should have a free hand (no pun) to discipline. Concurring opinion by Ginsburg showed appropriately female outrage. The second case, a 5-4 ruling that reversed a Mass. conviction for cocaine sale because the defense was denied the right to cross-examine the prosecution lab expert. Scalia wrote the majority opinion showing his roots as a constitutional scholar. "Liberal" Breyer joined Roberts, Alito & Kennedy in dissent, asserting that experts aren't the kind of witnesses the 6th Amendment applied to.