Elections Have Consequences

By Big Tent Democrat, Section Supreme Court
Posted on Mon May 11, 2009 at 07:44:34 AM EST
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There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate. - Barack Obama, 2005

Via DemfromCt, E.J. Dionne:

When George W. Bush was president, Senate Republicans now proposing to raise an ideological ruckus said Democrats were wrong to use judicial philosophy as a benchmark for confirming a nominee. If a president's picks were formally qualified and intelligent -- and both Chief Justice John Roberts and Associate Justice Samuel Alito were -- that should be enough, the Republicans said.

[MORE . . .]

. . . To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty. It's better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to "character," "qualifications" or "temperament."

Liberals, who (in my view, correctly) opposed Roberts and Alito on philosophical grounds, should thus not be hypocritical themselves and deny the conservatives' right to challenge a nominee's philosophy. On the contrary, liberals should welcome a real debate -- and win it.

The Judiciary, and the Supreme Court in particular, is a political branch. The Establishment, at least when Republicans control the White House, have long pretended it was otherwise.

The funny thing is Barack Obama told us in 2005 that if we want to have "liberal" Justices, we had to win elections (cited in this NYTimes article):

There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate.

Well President Obama, we have recaptured the Presidency and the Senate. Can we have our "liberal" Justices now?

Speaking for me only

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Elections Have Consequences | 23 comments (23 topical)

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I think what I am expecting (5.00 / 3) (#1)
by Anne on Mon May 11, 2009 at 08:25:58 AM EST

is a - man, I have come to hate this word - "pragmatic" nominee, someone Obama will not have to fight very hard for, because even if this person is not the traditional older white male, his or her ideology/judicial philosophy will reflect what Obama seems to be most comfortable with - the mushy middle.

I would love to be surprised by a liberal nominee; I would love to see Obama take an actually stand for someone who cares about social justice, but in my heart of hearts, I don't think he has the courage to do it. Nor am I convinced he actually wants someone on the Court who might take issue with Obama administration policies that seem to be continuations of Bush administration policy.

All I can say is, if he truly wants someone on the Court who has shown a commitment to social justice, he ought to make that nomination now, and not assume that he will have the luxury of going more liberal with what we think will be two more picks to replace Stevens and Ginsburg, especially if he doesn't get those chances before the 2010 midterms.

No, I think he'll go for pragmatism over progressivism.

I agree with your prediction, especially (5.00 / 1) (#8)
by oculus on Mon May 11, 2009 at 12:00:00 PM EST

in light of Senator Obama's early inclination to vote to confirm Roberts.


WTF? (none / 0) (#17)
by kaleidescope on Mon May 11, 2009 at 02:22:05 PM EST

Since Senator Obama voted NOT to confirm Roberts, I guess something hinges on what you mean by, "early inclination." Is there something significant we can learn about what kind of judge Obama will appoint based on an "early inclination" (whatever that was) that was later overridden?

It would be nice if you would explain what you mean.


Obama was going to vote for Roberts's (none / 0) (#18)
by oculus on Mon May 11, 2009 at 02:24:58 PM EST

confirmation because he thought Roberts was qualified and the President had the right to nominate anyone who was qualified. Then a political advisor told him this would not be a benefit if he decided to run for higher office. So he didn't. This isn't news.


Which Political Advisor? When? Link? (none / 0) (#19)
by kaleidescope on Mon May 11, 2009 at 04:27:02 PM EST

Link (none / 0) (#20)
by itscookin on Mon May 11, 2009 at 05:21:12 PM EST

From right here at Talk Left


: Thanks. Pretty sure I didn't dream it. (none / 0) (#21)
by oculus on Mon May 11, 2009 at 07:48:16 PM EST

it is a big test (none / 0) (#2)
by Capt Howdy on Mon May 11, 2009 at 09:05:33 AM EST

you may be right but for some reason I expect someone not so pragmatic.
possibly not "in your face", although I am hoping for that, but not necessarily pragmatic.

it will be very interesting to see what he does with this opportunity.


I wish i could argue with you (none / 0) (#6)
by MO Blue on Mon May 11, 2009 at 10:47:29 AM EST

and say that I think you are wrong. Unfortunately, I think that he will pick someone more conservative than most of us would prefer.

Elections do have consequences. Obama campaigned on unity and bipartisanship. Why would we be surprised if he nominated someone who would receive bipartisan support or at least just token opposition (i.e. right of center)?


well (none / 0) (#7)
by Capt Howdy on Mon May 11, 2009 at 11:00:32 AM EST

because even tho that is how he campaigned he really has not gone overboard to get republican approval on some things. I am still hopeful he may use this opportunity to remind us all why we voted for him.

but then, as we know, I am an optimist.


Didn't you just say in the Limbaugh (none / 0) (#9)
by oculus on Mon May 11, 2009 at 12:01:05 PM EST

comments most people expect another terrorist attach on the U.S.?


not pessimism (none / 0) (#14)
by Capt Howdy on Mon May 11, 2009 at 01:15:57 PM EST

realism. I am optimistic that it will not help Cheney make the case that they were better.


I read somewhere recently the reason (none / 0) (#15)
by oculus on Mon May 11, 2009 at 01:32:23 PM EST

U.S. military must remain in Iraq is to keep the terrorists busy so they won't have time to plot attacking us here. But then Petreaus says the terrorists aren't in Iraq now--they are in Pakistan and Afghanistan.


: That, and (none / 0) (#16)
by jbindc on Mon May 11, 2009 at 01:41:36 PM EST

We have the world's largest embassy - houses up to 50,000 people or so.
Gotta protect that.

This is one of those occasions (none / 0) (#10)
by MO Blue on Mon May 11, 2009 at 12:20:27 PM EST

where I hope that you are right and I am wrong.


I don't see a hard fight (none / 0) (#12)
by BobTinKY on Mon May 11, 2009 at 12:38:44 PM EST

these days the more vociferous the GOP opposition the more likely you are to have the public on your side.

If he picks someone he went to school with I will feel confident it will prove a very progressive pick. I think the talk about a non-conventional (non-Circuit Court judge) is laying the groundwork for that type of pick.


still, even from places like Boston (none / 0) (#3)
by Capt Howdy on Mon May 11, 2009 at 09:07:48 AM EST

we are getting things like this:

And that is why President Obama's "empathy" standard is so disturbing, and has generated so much comment.

"Our constitution is color-blind," wrote Supreme Court Justice John Marshall Harlan, in his great dissent in Plessy v. Ferguson, "and neither knows nor tolerates classes among citizens." Harlan had supported slavery; he believed whites were superior to nonwhites. He had his empathies, but he confined his judging to the law.

For the record (5.00 / 3) (#4)
by CST on Mon May 11, 2009 at 09:11:34 AM EST

Jeff Jacoby is the token conservative who writes in the opinion pages. He is making a fuss about "empathy" because he wants a right-wing condervative on the court. He is just trying to hide it.


: Ding! (none / 0) (#5)
by Big Tent Democrat on Mon May 11, 2009 at 09:13:32 AM EST

Yeah we have a few douchebags in (5.00 / 1) (#13)
by BobTinKY on Mon May 11, 2009 at 12:40:52 PM EST

Beantown. I grew up in the area. Though generally liberal we get the odd wingnut. The only one named Jacoby in Boston worth following is Ellsbury.


Stevens is pragmatic (none / 0) (#11)
by BobTinKY on Mon May 11, 2009 at 12:34:42 PM EST

I could live with a Stevens philosophical clone. I think Souter is pragmatic. Both terrific justices. We'd do well to have another woman or man just like either one of them.

Does this increase your (none / 0) (#22)
by oculus on Mon May 11, 2009 at 10:20:06 PM EST

confidence?

Obama to meet w/Reid, Leahy, McConnell, and Sessions re SCOTUS nomination

: Um, no, but I suppose he has to - (none / 0) (#23)
by Anne on Mon May 11, 2009 at 10:32:42 PM EST

the majority and minority leaders, and the Judiciary chair and the ranking member.
I have NO confidence in Reid, and I'm sure Obama will hang on every word McConnell and Sessions utter, so as not to miss out on those good GOP ideas.
Argh.