A Liberal on the Court

>> Sunday, May 3, 2009

Is it too much to ask that President Obama place and actual liberal on the SCOTUS? Since the end of the Warren Court the court has been shifting rightwards slowly but surely eroding protections established under Warren. The current Court has a strong rightward lean with Scalia, Thomas, Alito, Roberts and often Kennedy join for the majority, as they did in DC v Heller. In light of this the replacement for Souter is not going to be able to swing the court to the left by a significant margin. However, the value of ability to write dissents and to stand solidly in opposition to Alito et al cannot be understated. In light of this i would encourage President Obama to stand firm against the bipartisanship crowd and nominate a solid and dependable liberal to the SCOTUS.

Here is the quote from the transcript of Obama's response to how he views the selection of supreme court justices during the primaries.

Now with respect to the bench, I think you are exactly right, we have to have people with the intellectual qualifications and academic credentials to perform. But, that can’t be the only criteria. We have generally, lately, drawn only from the academic areas. And, some of our best justices have been people who know a little bit about how the world works; know what it looks like outside of a court. Because part of...especially when you get to the highest levels, the Supreme Court, and I taught constitutional law for ten years. 95% of the cases that come before the Supreme Court or the appellate courts are actually pretty easy to resolve. A lot of these cases are cases that where there’s a clear statutory, you know, there’s clear language that tells you what the law is, or there’s clear precedent that tells you what the law is, and Scalia and Ginsburg will agree on the interpretation. And, those cases usually get washed out. The cases that we pay attention to, that we care about are the 5% of the cases, or the 1% of the cases, and what makes them hard cases, is because they’re conflicting values. It’s not just that they’re, its right and wrong, its, there might be two rights or two wrongs and you’ve got to try and resolve them. And there, the question is, what’s in the persons heart and their gut, not just what’s in their head. And what I want are people on the bench, who have enough empathy enough feeling for what ordinary people are going through, that they’re not just in a bunch of abstractions up there, but they’re focused on, you know, what does this really mean. Brown vs. Board of Education is a great example, I mean, the truth is; is that the science that showed that black children going to segregated schools was bad for them, the sociology that was used was imperfect. I mean, it wasn’t really perfect science, but people on that bench, people like Earl Warren and Brennan and others, they understood you know what, what’s really happening is that this is part of a stigmatization of blacks, and so you cant pretend that there is anything like separate and equal, its inherently unequal, that’s a statement of values, and a statement of morality, and a statement of who we are and what we believe in.And, I want my judges to understand that part of the role of the court is to look out for the people who don’t have political power, the people who are on the outside, the people who aren’t represented, the people who don’t have a lot of money, who don’t have connections, that’s the role of the court. And yes, I want women on the court absolutely.

The allusion to brown is an important one. If Obama truly identifies with the way that the Warren Court decided Brown it presents an important insight into the way he understands the role of the judiciary. This response indicates a view that the court is an instrument of social justice with ability to reshape policy to protect the interests of the traditionally disadvantaged groups in society. Obama is advocating for a judicial awareness that the decisions made by the SCOTUS really impact the lives of people. By referencing Brown and the ability to pierce the evidence and facts presented in the case Obama seems to support a legal realist point of view.

Obama's discussion of empathy and understanding is actually encouraging because it takes us away from an understanding and framing that the right has successfully propagated for years, the "activist judges" meme. Activist judge is simply rightwing code for liberal. A judge who asserts the rights of the oppressed based on the principles illustrated in the constitution applied to the real world is an activist. A judge who ignores the real world effects, the practicalities, of the decisions and the concept of justice is one who "adheres to the constitution". Liberals lose the framing battle on the courts because they are afraid to stand up for their ability to interpret the constitution. They essentially cede the argument that scalian textualism is the true form of interpretation.

This is why i find it somewhat disheartening to see reports like this, Obama May Seek Out Centrist to Replace Souter on Supreme Court

Senators from both parties said the Democratic president should avoid filling the vacancy with an “ideologue.”

“I don’t like to see an ideologue of either the right or the left,” Senator Patrick Leahy, a Vermont Democrat and chairman of the Judiciary Committee, said on CNN’s “State of the Union” today. “I don’t think we’re going to have one.”

Obama “probably understands he is going to have more than one appointment,” said John O. McGinnis, a conservative legal scholar at Chicago’s Northwestern Law School who served in the Republican administrations of Ronald Reagan and George H.W. Bush. “It may well be he doesn’t want to make a very divisive appointment immediately given that he is pursuing so many other matters.”
Choosing a relative moderate would square with Obama’s campaign promise not to seek Supreme Court “activism,” while leaving open the possibility of a bolder nomination for a future vacancy. It would also help ensure an easy Senate confirmation, burnishing Obama’s centrist credentials while he seeks support for a health-care overhaul and other priorities.

Republican Senator Richard Shelby of Alabama said on CNN today it would be “good for the country” if Obama appoints “a pragmatist, someone who is not an ideologue.”

“I think the criteria should be to follow the law, not to make the law,” said Shelby.

Do i need to say how foolish listening to Orin Hatch and Richard Shelby about SCOTUS appointments would be? The other ridiculous notion in this quote is the idea that Obama should pick a middle of the road person this time and save the possible liberal for later. Cause, like, you know he has so much on his plate and he will need the political oxygen and plenty of other Steak Sauce esque prattle. The GOP is going to try and block whoever it is that Obama nominates. They havent voted for anything he has proposed so far so why start now? Who really believes the GOP wouldnt take a watered down nomination and try and block it anyway? They have a anti-roe litmus test and i cant imagine Obama nominating someone who would want to repeal that precedent. What this article is all about is pushing against an actual liberal on the court.

As encouraging as Obama's initial statement about empathy and an understanding about the real world effects of judicial opinions his follow up in an interview last year was disappointing,

In a 2008 interview with the Detroit Free Press, Obama identified Marshall and other liberal icons of the court as "heroes of mine." But he added: "That doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

At other times, Obama suggested that he was inclined to name moderates in the mold of President Clinton's choices of Ruth Bader Ginsburg and Stephen G. Breyer -- not known as bold advocates of liberal jurisprudence in the way Scalia is viewed on conservatism.

The Court needs a champion of the rights established by the Warren Court. The center of the current court is very far to the right. If Obama nominated someone to be in that center that would only increase the erosion of rights that Obama asserts admiration for. It is interesting that most people laud the rights enshrined by the Warren Court but wont approve of the way they were arrived at. If your philosophy couldnt have decided Brown v Board against the segregationists thats a problem. The Court makes policy and there is no way around that, pretending that a moderate centrist is going to deliver on the policy Obama claims to favor isnt wise.

A young brilliant counter to Scalia and Alito is whats needed, someone who can articulate a liberal judicial philosophy. Lani Guinier explains,

Depending upon the choice President Obama makes — Justice Souter’s legacy could be the opening up of the court to a pragmatic politician who understands Justice Brennan’s “rule of five” for a majority opinion. However, President Obama’s nominee might be even more influential if she understands her power as a dissenter and uses her voice on the court to mobilize the people themselves to change the meaning of the Constitution over time.

We’ve seen this on the right, where Justice Scalia plays an active role in creating the philosophical ground upon which citizens can advance alternative interpretations of the constitution of their own.

In his dissent, for example, in Lawrence v. Texas , which found the Texas sodomy statute unconstitutional, Justice Scalia was in conversation with a conservative constituency.

Within a few days of having published his dissent in that case, conservative activists were circulating copies of it. We have also seen it on the left, with Justice Ruth Bader Ginsburg issuing several forceful oral dissents on gender issues, including one in the pay equity case of Lilly Ledbetter.

Justice Souter joined Justice Ginsburg in dissenting from the majority opinion, which threw out Ms. Ledbetter’s suit because she did not file it as soon as she received her first shortchanged paycheck. Yet Ms. Ledbetter, an Alabama grandmother, did not learn of the pay disparity she suffered until someone put an anonymous note in her box. Moreover, as Justice Ginsburg explained, women in an all-male work force are often scared to make waves.

Justice Ginsburg’s forceful and passionate dissent helped frame the issue. Her plain language spurred activists, politicians and the Obama campaign to push Congress to change the law. As a result of this mobilization, the first major piece of legislation signed by President Obama, the Lilly Ledbetter Equal Pay Act, overruled the court majority’s cramped decision.

With conservatives strongly positioned in the majority on the court, President Obama’s nominee will likely have to show her judicial philosophy primarily in dissent. President Obama should appoint a jurist who, like Justices Ginsburg and Scalia, speaks directly to the American people in a voice they can understand.

Obama cannot afford to play it safe on his first pick because there is no guarantee that he gets to make another pick even if Stevens is 89 years old.


Darren Lenard Hutchinson May 10, 2009 at 1:32 AM  
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