How the Supreme Court Will Play Out the Next Four Months

Trump will nominate a justice pre election, then they will seek to confirm post election (pre inauguration of Biden). This will motivate base for election while mitigating the blowback pre election. Post election the Republicans will have little to lose by confirming the new nominee regardless of whether they win or lose the 2021 Senate majority but especially if they lose the majority. They will sell the confirmation as a way to control the post inauguration Dems.

Update:

Well that did not take long...presumably they knew Ginsburg was on her deathbed.

John Santucci (7:04 pm 9/18/20)

@Santucci

Multiple sources close to President Trump with direct knowledge tell ABC News he is expected  put forth a nominee to fill Ruth Bader Ginsburg’s seat in the coming days via me & @KFaulders

I suppose a downside for Republicans is there may be a few voters on the margin who will think "well we have control of SCOTUS now, maybe I don't really have to vote for a fascist in order to overturn Roe v. Wade etc."

I ascribe to the notion that many Machiavellian Republican leaders do not really want to overturn Roe v. Wade as it has been a powerful wedge issue to use to motivate their voters. Of course Roe v. Wade is not the only matter at hand. All of these voter suppression efforts are real and ultimately subject to SCOTUS oversight. An oversight led by Kavanaugh, Thomas et al. and now another one is not a comforting thought.

Empower the Corporations!!

TW: Have been meaning to get to this. The five conservatives on the SCOTUS have decided corporations should have the same rights as folks. Barry Ritholz quoting Jeremy Grantham captures a key difference between the average volk and a corporation. The populists may think these days that the Republicans are their huckleberries but not so much.

From the Big Picture blog:
"Supremely Extreme: Another “Day That Will Live in Infamy”.
Five Supreme Court justices today announced that not only are corporations people and that their money is free speech – this is old hat and a very ugly hat at that – but now, there should be no limit to the money they spend to influence political outcomes. This would be one thing if corporations really were “democratic associations” of humans that the Founding Fathers may have wanted to protect.
They are, instead, small oligarchies of top management. Thus, the top management of major oil and coal companies can decide what political outcomes they want to promote, say, unlimited production of carbon dioxide (none of their CEOs apparently has grandchildren!), utterly without any approval of their decisions by the millions of actual owners.

The financial power of corporations was already in danger of overwhelming the democratic process in Congress and this makes the damage potentially unlimited and puts the Court’s seal of approval on it. So let’s do it in style and have a name change. The U.C.A. has a familiar look: The United Corporations of America!"
http://www.ritholtz.com/blog/2010/01/grantham-usa-uca/

Why the Supreme Court Is So Important

From Alan Dershowitz via Economist trying to explain the dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas in the case of Troy Davis.:

"Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent."

From Economist:
"...Mr Davis is on death row for murdering an off-duty police officer named Mark MacPhail 20 years ago. Seven of the nine eyewitnesses who fingered Mr Davis have since recanted their testimony. Many now say they were coerced by police and that the real killer is Sylvester Coles. Mr MacPhail was trying to get Mr Coles to stop harassing a homeless man at the time of the incident. Mr Coles also happens to be one of the witnesses who fingered Mr Davis.

Is Mr Davis innocent? That's not the right question. Does his potential innocence matter? Not to Justice Scalia, who wrote, "This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." Thankfully, a majority of the court was more empathetic, ruling that Mr Davis deserves a new hearing. In an opinion joined by Justices Ruth Bader Ginsburg and Stephen Breyer, Justice John Paul Stevens wrote that the "substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing." Indeed."

TW: Conservatives when convenient speak of strict constructionism as a legal tenet. I am not sure if Scalia and Thomas went off the rails in pursuit of some warped sense of constructionism or if they just want anyone with the slightest possibility of guilt to fry.

Senate Hearings For SCOTUS Are Relatively New And Essentially Worthless

TW: That the Senate hearings for SCOTUS nominees are a fandango is not news. What I did not realize is that they are a relatively new process. The hearings are another one of those extra-legal procedures the Senate manages to create more or less out of the blue which provide at best dubious value. I agree with Fineman lets cut out these farces. Go back to the old procedure, a POTUS nominates a candidate, the Senate votes on the candidate after conducting its due diligence without the hearings.

From Howard Fineman at Newsweek:
" ...We need to stop holding Supreme Court confirmation hearings. Put them out of their misery. They have no clear purpose—or at least no useful one. They make everyone involved look bad. They are worse than a waste of time, because they confuse the public about what the Supreme Court does and undermine respect for law and judges. They aren't even good television anymore.

Nowhere is it written that the Senate must cross-examine nominees. That happened for the first time in 1925. President Eisenhower made three recess appointments, meaning that Earl Warren, William Brennan, and Potter Stewart all were seated and voting on the court before the Senate scrutinized them. The first hearing to become a TV soap opera was Sandra Day O'Connor's in 1981—not coincidentally, a year after CNN invented the cable news business. Six years later, the Democrats savaged the hapless (and unrehearsed) Judge Robert Bork. A verb was invented. To bork: to deny a nominee a seat on the high court by portraying him or her as a mentally unstable wingnut.

A half generation later, the folk memory of Bork has combined with warp-speed, saturation media coverage to destroy what meager value the hearings ever had. The theory was that senators needed to handle the merchandise before giving "advice and consent" on the nomination. But now—recognizing the viral danger of YouTube and the like—the nominees arrive on the Hill encased in hard, shrink-wrapped plastic, the kind you can't open without pointed scissors and a kitchen knife. The game (and it is one) becomes an atavistic search for an emotional gotcha moment, a test more appropriate to a hockey goalie than a Supreme Court justice. As long as she did not have a "meltdown," said Sen. Lindsey Graham, Sotomayor would be confirmed. A worthy standard, indeed...."
http://www.newsweek.com/id/207411

Elections Have Consequences

TW: Sotomayor is done with her hearings. Someone asked me what I thought about her. My answer is that I do not think much about her other than she was appointed by a Dem. At the end of the day elections have consequences one of the most profound of which is that the POTUS picks SCOTUS nominees who typically serve for decades. With very rare exceptions (i.e. Robert Bork who was known to be very controversial before his pick and was a bridge too far for the Republicans), the nominees get approved. Folks can shriek and moan but they are approved almost without fail.

There are occasionally nominees who veer off the ideological path assumed by the POTUS (i.e. Souter and Stevens not to mention the big Kahuna Earl Warren) but they are also relatively rare and a Dem has not had one of those in a long time. I suspect these outliers will become even less prevalent as, since Reagan, the Republicans make every effort to appoint rock-ribbed judicial conservatives. Alito and Roberts despite their silky smooth confirmations are turning out to be if anything more conservative than Scalia and Thomas. The current court is VERY conservative with the most "liberal" of the five member conservative majority, Anthony Kennedy, being more conservative than any of the 1950-1960 era justices.

The rest of this process is a charade. The Republicans last week had one goal, try to fire up whites about reverse discrimination whilst hopefully from their perspective not pissing off hispanics and others too much. They may have actually scored a few points.

Via Economist:
"DAHLIA LITHWICK writes...Sonia Sotomayor remains something of a mystery. The hearings, Ms Lithwick writes, have revealed nothing of Ms Sotomayor's "views on guns, gay marriage, abortion, military tribunals or eminent domain. We may actually know less about her views on these matters today than we did going into these hearings." Ms Lithwick wishes that there were "a better way of doing this—something that would bring out the best in all of us", but it's hard to understand why, much less what she means by "best": Ms Sotomayor proved herself an adept parrier and evader, even claiming to have never thought about whether the unborn have rights. The simple fact is that a president of either party has wide latitude to nominate a justice of his choosing. Republicans may dislike Ms Sotomayor, but that matters about as much as Democrats' dislike for John Roberts and Samuel Alito."

The World According To Pat Buchanan

TW: I have opined that the Republicans need some new blood in order to re-gain electoral strength. This piece by Pat Buchanan helps validate my perspectives. He makes a couple of points: 1) the Hispanic (and presumably African-American and Asian votes etc.) are not that important electorally and 2) Sotomayor will be a horrible judge compared to stars such as Clarence Thomas, Scalia and Roberts.

His math with the Hispanic vote is dubious given the growth rates for Hispanics but more importantly he fails to understand whites are not a monolithic bloc (just like Hispanics are not either). And in fact diatribes like his help many whites realize the Republicans need to adapt and embrace the 21st century rather than merely wish for an allegedly terrific bygone era. He apparently buys into the notion that McCain VP pick was brilliant and McCain only been rougher and more devisive he would have won.

His attempt to portray Sotomayor as some sort of uppity Latina may cause a tingle to run down the leg of a part of the Republican base but will do little to expand the base whilst suffering from a dearth of actual factual basis.

Buchanan pines for the days of Justice Douglas, Ramsey Clark and Jocelyn Elders but alas Pat few if any remember those oldie but goodies. I actually like Buchanan's directness at times but he is not the future of the Republican or any party.

From Pat Buchanan at Human Events:
"...In 2008, Hispanics, according to the latest figures, were 7.4 percent of the total vote. White folks were 74 percent, 10 times as large. Adding just 1 percent to the white vote is thus the same as adding 10 percent to the candidate's Hispanic vote.

If John McCain, instead of getting 55 percent of the white vote, got the 58 percent George W. Bush got in 2004, that would have had the same impact as lifting his share of the Hispanic vote from 32 percent to 62 percent.

...Why did McCain fail to win the white conservative Democrats Hillary Clinton swept in the primaries? He never addressed or cared about their issues.

These are the folks whose jobs have been outsourced to China and Asia, who pay the price of affirmative action when their sons and daughters are pushed aside to make room for the Sonia Sotomayors. These are the folks who want the borders secured and the illegals sent back.

Had McCain been willing to drape Jeremiah Wright around the neck of Barack Obama, as Lee Atwater draped Willie Horton around the neck of Michael Dukakis, the mainstream media might have howled.

And McCain might be president.

McCain soared a dozen points when he picked Palin, who seemed to Reagan Democrats to be "one of us." They came roaring back, but left for good when McCain declared the economy fundamentally sound and rushed to D.C. to persuade Republicans to vote for a huge bank bailout opposed by Americans 100 to 1.

...And if Republicans, in 2010 and 2012, can point to the court and say Sotomayor is their kind of justice, and Scalia, Roberts, Alito and Thomas are our kind of justices, that will not be all bad. Justice Douglas, Ramsey Clark and Jocelyn Elders, after all, did a whale of a lot of good for the Republican Party in days gone by"
http://www.humanevents.com/article.php?id=32699

The Supreme Court: It Is All Relative

TW: I have posted on this in the past. The Supreme Court has been traditionally a conservative institution. It came up with Dred Scott and numerous reactionary rulings limiting civil rights, it greatly hindered FDR's New Deal and the Republican administrations of Reagan and the Bushes put an end to the progressiveness of the Warren Court of the 50's and 60's. Republicans get the importance of the SCOTUS, I am still not convinced Democrats do. Conservatives whine and moan using all their little codewords but at the end of the day, the SCOTUS post-Sotomayor will still be plenty conservative.

From Ezra Klein at WaPo:
"...The Supreme Court, and the legal profession in general, have moved decisively rightward since the '70s. Cass Sunstein, who clerked on the Court in 1980, explains it well:

In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.

Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.

Then we would have to leave Breyer, Stevens, Souter and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart...

To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980!

Here is another way to demonstrate the point. In 1980 Stevens often operated as the Court's median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. If he qualifies for that position, it is not because of any significant change in his own approach, but because of a massive shift in the Court's center of gravity."
http://voices.washingtonpost.com/ezra-klein/2009/05/i_am_an_important_fact_the_sup.html

Plus ça Change, Plus C’est la Même Chose. (cont.)

TW: These comments speak for themselves the interesting part being the long-standing tradition within their party for such enlightenment.

From Karen Tumulty at Time:
"...from G. Gordon Liddy's radio show, a moment where the host contemplates the prospect of a Justice Sotomayor:

LIDDY: Let's hope that the key conferences aren't when she's menstruating or something,or just before she's going to menstruate. That would really be bad. Lord knows what we would get then.

Which for some reason reminds me of how his old boss approached the idea of a woman on the Supreme Court (click on the quote below to enlarge):

http://swampland.blogs.time.com/2009/05/29/age-of-enlightenment/

Our Proud Legal Heritage

TW: In these challenging times, we take certain American influences for granted. We also when a new SCOTUS justice is nominated get wrapped up in what ultimately almost always become trivialized discussions with little lasting impact. What has had a lasting impact though is the influence of American jurisprudence throughout the world. American judicial processes and legal predicates are not certainly the only global source of leadership but they are clearly the pre-eminent one. This is something about which to be proud but also about which to be mindful when the notion of American exceptionalism threatens to eclipse our collective good sense.

From NYT:
",,,picking a justice for the Supreme Court will have more ramifications for the republic than any cabinet secretary or ambassador.

The United States may be a comparatively young country, but its institutions have influenced the world profoundly. The constitutional ideals put forth upon its shores in the late 18th century guided the way other societies organized themselves, from the Déclaration des Droits de l’Homme et du Citoyen in France in 1789, to the Universal Declaration of Human Rights adopted by the United Nations in 1948, to the constitutions of dozens of other countries emerging from colonialism and Communism. From the earliest times, as the historian Samuel Eliot Morison wrote: Liberty to Americans meant, “first freedom under laws of their own making, and, second, the right to do anything that did not harm others.”

The U.S. Supreme Court was established in 1789, but drew on the experience of earlier state constitutions. Eighteenth century Americans had read John Locke who wrote “where law ends, tyranny begins,” and they were particularly mindful of setting up an independent judiciary, beholding to none, where abuses of power by kings and political leaders could not prevail. The early justices had robes of black and scarlet, but they agreed with Thomas Jefferson who urged that they “discard the monstrous wig which makes the English judges look like rats peeping through branches of oakum.”

For nearly 150 years the United States was practically “the only country with a written constitution enforceable as law,” according to Anthony Lewis, one of America’s most knowledgeable journalists writing about the law.

Supreme Court Justice Stephen Breyer says that “since W.W. II, however, there is a new interest throughout the world in written constitutions” with legal systems moving closer to the American model — “Germany, Spain, Italy, the European Union, the European Court of Human Rights” as well as countries in Asia, Africa and Latin America. Even France is moving toward a court that can review legislation similar to the U.S. model, according to Breyer.

As Israel’s Aharon Barak once put it, the tyrannies of the 30s and 40s showed that it was no longer possible to rely on the British phrase “it just isn’t done.” The law had to be enforced. Nelson Mandela called it a great day for post -apartheid South Africa when a free and impartial court reversed one of his decisions.

Even though they don’t have a written constitution, the British have created a new Supreme Court, and will be moving their law lords out of the House of Lords into the Middlesex Guildhall in Parliament Square. It is an effort to make the highest court judges more independent. Can the abandonment of judicial wigs be far behind? ..."
http://www.nytimes.com/2009/05/19/opinion/19iht-edgreenway.html?scp=1&sq=hds%20greenway&st=cse

Sotomayor

TW: Am not going to get too much into the trees on this topic but two things. Sotomayor has an interesting background see below. Two, barring some skeleton in the closet the Republicans are crazy to oppose this nomination intensely. Can they raise some money with the base? Probably.

But unless Obama appoints an outright conservative that is going to be the case with any of his nominees. Sotomayor is highly qualified. The Republicans risk further pushing themselves into the toilet with women, Hispanics and moderates as Sotomayor happens to be all three. Those three groups are the same three groups Republicans will eventually need to attract should they wish to regain electoral strength.

From NYT"
"...Judge Sotomayor, 54, grew up in a Bronx housing project, a child of Puerto Rican parents. She would be the court's first Hispanic justice. Her father died when she was 9, leaving her mother to raise her and a brother. In speeches to Latino groups over the years, Judge Sotomayor has recalled how her mother worked six days a week as a nurse to send her and her brother to Catholic school, purchased the only set of encyclopedias in the neighborhood and kept a warm pot of rice and beans on the stove every day for their friends.

She loved Nancy Drew mysteries, she once said, and yearned to be a police detective. But a doctor who diagnosed her childhood diabetes suggested that would be difficult. She traded her adoration of Nancy for an allegiance to Perry -- she became a fan of Perry Mason on television, she said, and decided to become a lawyer.

She went to Princeton, which she has described as a life-changing experience. When she arrived on campus from the Bronx, she said it was like "a visitor landing in an alien country." She never raised her hand in her first year there. "I was too embarrassed and too intimidated to ask questions," Judge Sotomayor said.

In one speech, she sounded some themes similar to Mr. Obama's description of his social uncertainties as a biracial youth in a largely white society.

"I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of the worlds I inhabit," she said, adding that that despite her accomplishments, "I am always looking over my shoulder wondering if I measure up."
After graduating summa cum laude from Princeton, she went to Yale Law School, worked for Robert M. Morgenthau in the Manhattan District Attorney's Office and spent time in private practice before being named to the bench..."

From Steve Benen at Washington Monthly:
"...H.W. Bush nominated her for the district court in 1992 (she'd been recommended by Daniel Patrick Moynihan), and Clinton nominated her for the appeals court bench five years later. Senate Republicans, as is their habit, held up Sotomayor's nomination for more than a year, "because they believed that as a Hispanic appellate judge she would be a formidable candidate for the Supreme Court."

Views Of an Obamacon

TW: The second part of the Kmiec interview that I plucked focuses on the Supreme Court. My cynical view on SCOTUS nominees is that folks are going to create "doctrines" (i.e. constructionism, originalism etc.) that sound sophisticated and complex, but those are means to an end. Conservatives politicos (and their progressive counterparts) do not particularly care about the doctrine they care about the results. At the end of the day everyone wants empathy as in empathy for their views.

From Economist:
DIA: During the presidential campaign you noted Mr Obama's affinity for Supreme Court justices like Stephen Breyer and David Souter. Would you be able to support an Obama nominee in their mould?
Mr Kmiec: Barack Obama did mention during the campaign that he admired Justices Breyer and Souter. His reasoning was anchored in their unwillingness to be slavishly bound to the historic meaning of constitutional terminology, and their understanding of the great charter in terms of its ability to resolve modern problems.

Mr Obama also said he would look for the quality of empathy in his judicial selections. The president, I believe, uses the term to convey that justices should be impartial, but not indifferent. Law and adjudication is not just a mental exercise in doctrinal neatness. An Obama nominee should be capable of understanding the real-life consequences of judicial outcomes, especially for those who are least advantaged. This is refreshingly attractive and informs Mr Obama's desire to nominate justices with a broader life experience than one spent largely in a classroom or appellate courtroom.

Based upon his years teaching at the University of Chicago, I'd look for Mr Obama to favour a nominee who is not afraid to challenge either some result-oriented liberal judging or the incompleteness of the conservative method that has dominated the court since Nixon appointed Warren Burger to the bench in 1969. Burger, and especially his successors William Rehnquist and Antonin Scalia, have plied the notion–so-called Originalism–that it’s not up to them to do justice, since they are just following the plain, public meaning of the words ratified two hundred plus years ago. 
 


...plain public meaning is a beguiling idea, until one actually looks for it. There was no single public mind in 1787 any more than there is now. Back then, public meaning was no doubt very much like it is today: an admixture of both shared and different conceptions of what a given constitutional phrase was intended to accomplish. Mr Obama’s task is to find a jurist who not only comprehends the limits of James Madison’s dictionary, but also appreciates how real wrongs can be made right with words that have a meaning in the here and now.

Mr Obama’s campaign prided itself on supplying the “change we need”. It is well past time that legal insights are acknowledged to be possessed by those possessing something other than the standard resume. There is reason to believe that the ultimate “justice” and accountability derivable from the court’s work would be enhanced by appointing individuals of more varied background: a woman, say, who interrupted law practice to raise a family before returning to the profession; or a sole practitioner who has borne the burden of navigating a family through foreclosure or bankruptcy..."

The Politics Of Souter's Replacement

TW: We will hear far too much about the Souter replacement over the coming months. So I will try to keep things to a minimum here but one prediction. The Dems will end up with more internal controversy than the Republicans. Cilizza in the piece below frames some of the risks for the Republicans.

I would add if the Republicans are smart (an admittedly dubious outcome) they will lie low. They have two plays- the high road understanding fighting a female and/or Hispanic nominee is ultimately a non-winner. Or the low road, obstruction in an ultimately unsuccessful effort to push Obama towards a more conservative nominee. While the latter might help with contributions from their base, it would only cement the Republicans as the obstructionists and further alienate the party with two constituencies they must do better with should they wish to actually start winning more elections.

The Souter slot is after all a hold for the progressives as will be the eventual replacements for Ginsberg and Stevens when they retire as they likely will over the next couple of years. Should part of the conservative bloc retire (Thomas, Scalia, Alito, Roberts, Kennedy) then all bets are off, the process will be bloody.

Conservatives care first about nominating those with well defined and strict conservative judicial tendencies (e.g. abortion, prayer, tough on crime, property rights, comfort with torture may be an emerging need btw etc.). Dems want progressive justices but worry far more about diversity for better or worse.

Should there be more than one woman on the court? Absolutely. Is it time for a Hispanic? Absolutely. But the Dems must be careful to avoid the blatant and potentially divisive pandering to interest groups which frequently characterize their nominations. Part of this is just proper handling of the nominee, i.e. regardless of the nominee's demographic, focus on the qualifications. But there is a real risk unless Obama and his folks are very adept that the Dem interest groups will fall into bickering with each other about getting their preferred demographic into the slot.

Two things should mitigate the bickering this time, one Ginsburg and Stevens will almost certainly retire within the near future providing two more slots. The second more Machiavellian reason is that fighting a well-qualified the next Hispanic/Asian and/or female should be very difficult for the Republicans. Challenging the second or third far less so. If Obama is smart he will keep some demographic chits in his pocket in case a truly pivotal nomination becomes available.

From Chris Cilizza at WaPo:

"...the national Republican party finds itself in a state of flux -- caught between an establishment wing who is seeking to re-brand it to make it more attractive to independents and a conservative base that wants a return to the roots.

Will President Obama's next nominee to the Court help unite the Republican party to oppose a common adversary or further expose the rifts that divide it?

Most party strategists we spoke to in the wake of the Souter announcement argued the former scenario is more likely...

...Another senior Republican strategist granted anonymity to speak candidly said that a Supreme Court fight will be good for fundraising -- particularly among low-dollar donors who feel passionately about judges (and judicial activism).

...Recent history suggests a disconnect between the Senate's generally open-minded approach to nominees and the party base's more ideological and confrontational stance -- and it is worth watching how that potential dissonance plays out.

...With the further elevation of conservative voices within the party -- hello Rush Limbaugh! -- it's not difficult to see a further fracturing of the GOP if Obama picks a Supreme Court nominee with whom the base is deeply unhappy but the establishment wing of the party (including a majority of Republican senators) believe is acceptable.

...A split within the GOP on the nomination, which could feature movement conservatives like Alaska Gov. Sarah Palin and South Carolina Gov. Mark Sanford on one side and establishment figures like former governor Mitt Romney (Mass.) and Minnesota Gov. Tim Pawlenty on the other, would be something close to an unmitigated disaster for a party trying to united behind a few core principles to prepare for the 2010 midterm elections and the 2012 presidential fight."
http://voices.washingtonpost.com/thefix/republican-party/souter-retirement-republican-o.html?wprss=thefix

Souter a Justice From a Different Age

TW: Today will be Justice Souter day, he came into the Court enigmatic and leaves enigmatic. Appointed by George H.W. Bush, he has ended up a Court moderate far more criticised by those to the right than the left. Instead of a doctrinaire Scalia, Thomas, Alito, Roberts type, Souter has presided as a moderate with slightly left of center positions. In a more progressive Court era Souter would have been regarded as a slightly right of center type, which speaks to how far right the Court has evolved in the era of Reagan/Bush.

A David Souter like person will likely not be appointed again soon. Today's turbo-charged confirmation process will ensure the new justice is less mysterious and more doctrinaire. Our Supreme Court nomination process is broken (by the mutual efforts of the left and right). Moderation and legal acuity are passe. Partisanship and rigidity are in. Another variable now enshrined by the Republicans is appointing the youngest possible justice, here is to hoping Obama at least follows that new tradition.

From Craig Crawford at Congressional Quarterly:
"...I am reminded of those days in 1990...I found Souter to be a remarkably evenhanded and surprisingly pragmatic judicial pick in an era when ideologues thought they ruled the roost.

Sure enough, Souter proved to be something of a liberal justice, at least in the context of the rightward leaning court. To his credit, he made no effort to "court" conservatives when seeking Senate confirmation. And further to his credit, the reclusive Souter once told me that, while Washington is a "horrible city" full of "despicable people," it is the "best place in the world" to do the "most good for all." Those words guide me still, and keep me on the case in this miserable town.

...You could see Souter's leftward bent coming in his 1990 Senate hearing. In particular, I recall his clever and witty responses during a testy back-and-forth with Iowa Republican Charles Grassley, who became quite frustrated with Souter's refusal to toe the conservative line. Souter simply would not provide assurances that he would narrowly interpret individual rights under the Constitution.

"As your testimony hit me on Friday, it seemed to me more the terminology likely to come from a judicial activist," Grassley said, inviting the nominee to "rephrase it in favor of something better."

Souter smiled and said, "I think you're giving me a hint, Senator."

The former New Hampshire judge offered no solace to Grassley; instead he further defended the power of courts to define unwritten rights. He cited the example of Brown vs. Board of Education, the 1954 ruling that outlawed racially segregated schools.

"If you simply read the text of the Constitution and somebody said, 'Where does it refer to school desegregation?' - of course you would not have found anything," Souter said. "But I think that clearly implicit in the text of the Constitution itself was the proper basis for the court's exercise of its jurisdiction."

Grassley then asked Souter to name any case in the court's history where "improper rights were created." The nominee mentioned none.

"Well then, let me see if I can help you where you might think the court improperly acted," Grassley said. He cited rulings during the tenure of Chief Justice Earl Warren, despised by conservatives for provoking decisions during the 1960s that aggressively expanded the rights of criminal suspects.

Souter did not agree that the Warren Court rulings went too far, describing them as a "pragmatic implementation" of the Bill of Rights.

Further aggravating conservatives, Souter praised the Warren Court rulings for teaching law enforcement officers how to protect the rights of suspects.

"We have learned to live with those rulings and we live with them pretty well today," Souter said.

One of Souter's statements during his Senate grilling has always stuck with me. Pressed for his views on individual rights, Souter offered a gem of wisdom that struck me as a delightful distillation of what our country is all about: "I'd rather have a right to do something than a right to stop someone else."

A Legal Repeat Of the 1930's?

TW: As you may recall, the SCOTUS threw serious wrenches in the FDR New Deal policies in the mid-30's declaring many attributes of his programs unconstitutional. It was iffy for awhile whether social security would survive a court made up of very conservative cro-magnons judicial appointees leftover from the Taft/Wilson/Harding/Coolidge/Hoover period. The infamous court packing crisis resulted whereby FDR threatened to expand the number of justices from 9 to 11 in order to alter the majority view.

Some are speculating Obama may run into similar constraints dealing with the current SCOTUS now composed largely of increasingly conservative Republican appointees. The last 30 years have been the longest heyday for laissez-faire since the 1920's (things crashed after that period too, wonder why?) and the longest stretch of conservative judicial appointments as well. A collision is likely.

From Newsweek:
"...From the TARP bank bailout, to climate change "cap and trade," to health-care reform, new laws could face an array of judicial doctrines recently honed by conservative lawyers.

...In fact, for most American of history, this alignment has been the norm. From the time Thomas Jefferson faced an array of Federalist judges, the unelected third branch has tended to be more conservative, more protective of private property, than the elected branches...In the early 20th century, the Supreme Court blocked Progressive Era laws, such as the minimum wage for women and limitations on working hours. It began to strike down key New Deal laws, too, until Franklin Roosevelt threatened to pack the bench by expanding the number of justices. When the court abruptly started to uphold FDR's laws, wags dubbed it "the switch in time that saved nine." The era marked by Chief Justice Earl Warren, when liberal federal judges sometimes raced ahead of the public and political leaders, was something of a fluke that lasted only about two decades.

For the past quarter century, the courts have been conservative, but so has the government. Few new sweeping regulatory schemes became law. Now the Roberts Court has tilted markedly more conservative than the Rehnquist Court—at the same time the voters elected a more liberal set of politicians than they had in half a century.

...Challenges to TARP, which gives vague powers to the executive branch, may unfold soon. If banks are nationalized, shareholders may assert they have been unfairly deprived of the value of their investments. Other goals, such as health-care reform and climate-change curbs, inevitably involve a blizzard of new rules, mandates and taxes. These will face challenges from businesses, who have found a sympathetic hearing in many recent cases. As law professor Jeffrey Rosen points out, of 14 antitrust cases heard by the court over the past two terms, business won every time. Conservatives increasingly cite the limits of the Constitution's "commerce clause," or states rights, to blunt federal action.

...In some ways, the biggest battles will be over doctrine—over the meaning of the Constitution and how to interpret it. Once, liberals like Justice William Brennan relied on what he called a flexible "living Constitution." In response, conservatives argued for relying on the original intent of the Founders and decried "activist judges." Now debates have turned topsy-turvy. Arguably the most visible advocates of a "living Constitution" are John Yoo and Dick Cheney, who claim it gives the president nearly unlimited power, while liberals are more likely to quote Madison and Hamilton on checks and balances. Justice Stephen Breyer, in his book "Active Liberty," argued that the Constitution at its heart seeks to boost the participation of citizens in their government. This deference to the idea of democracy may give room to uphold energetic new statutes. Faced with the prospect of courts far more likely to strike down liberal laws, many progressives may again embrace the virtues of "judicial restraint."
http://www.newsweek.com/id/189234

Watch For the Coming Change In the Courts

TW: To me the judiciary is crucial, it is the third leg of the government and has been moving steadily rightward/wrongward. As this piece illustrates, Obama has arrived just in time to stave off a disastrous sealing of right-wing domination of the courts. The conservatives have gained effective control of the federal judiciary, this is change I can believe in.

From Int'l Herald Tribune:
"...the United States Court of Appeals for the Fourth Circuit, based in Richmond, which appears on the verge of stark change. Retirements on the 15-member court have left it divided with a slim 6-to-5 majority of Republican-appointed judges. That means Obama has four vacancies to fill and the potential to drastically reshape the court, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.

In recent years, the Fourth Circuit had become the most assertively conservative court in the nation. Its judges have taken the lead in trying to reduce U.S. power in several areas, even once trying to lead the way in undoing the Miranda rule that criminal suspects must be apprised of their rights before they answer questions. The court's conservative majority also tried to roll back affirmative action policies and was reliably supportive of Bush administration efforts to widen presidential authority in detaining terrorism suspects without trial or charges without congressional input.

...Shaping the appeals courts, the level just below the Supreme Court, was at the heart of the strategy first put in place by conservatives during the Reagan presidency. They saw to it that President Ronald Reagan put at least one forceful and articulate conservative, usually an academic, on each of the circuit courts.

At least so far, the candidates being considered by the Obama White House for early nomination do not appear to have especially ideological profiles.

Because Republicans have controlled the White House for all of the last 28 years except the eight years of the Clinton presidency, more than 60 percent of the judiciary is made up of Republican-nominated judges.

The result is Republican control of eight of the regional appeals courts; Democrats have a majority in two circuits, the Second and the Ninth, based in San Francisco. The Third Circuit, based in Philadelphia, is split 6 to 6, with two vacancies.

Arthur Hellman, a professor at the University of Pittsburgh law school who is an authority on the circuit courts, said reliable studies regularly demonstrated that the Republican-appointed judges had moved the nation's courts in a more conservative direction in several areas.
They tend to be more restrictive of abortion rights, less accommodating to criminal defendants and sharply skeptical of expanding U.S. authority at the expense of the states."
http://www.iht.com/articles/2009/03/11/america/11judges.php

The Coming Battle: Obama Court Appointments

TW: The Republicans have been highly successful pushing the Supreme Court to the right. These ratings from US News World Report last year display the magnitude of the tilt. Using justices since 1937, five of the ten most conservatives justices are currently serving on the court, while only one of the most liberal currently resides on the bench.

From USNWR:
"NUMBER OF CONSERVATIVE VOTES ON U.S. SUPREME COURT, 1937-2006
10 "Most Conservative" Justices (bolded justices currently serve on the court)
Justice/% ConservativeVotes
Thomas .822/Rehnquist . 815 /Scalia .757/Roberts .753/Alito .740/Burger .735
O'Connor .680/Powell .677/Whittaker .673/Kennedy .647

Of the top ten liberal votes only one is on the court (or even has been over the past ten years)
Ginsburg .312 "
http://www.usnews.com/articles/news/national/2008/05/12/ranking-the-politics-of-supreme-court-justices.html

TW: Obama will likely have at least two appointments during his first term, should he serve two terms he could nominate one to three more. Unfortunately for progressives the most likely first two appointments will replace progressives, Ginsberg and Stevens, hence Obama will merely be playing defense. The Republicans have not only appointed hard core conservatives but young ones who will likely end up serving for decades on the court.

Obama's nominations will likely make the recent efforts to seat Treasury and Commerce nominees seem like child's play. The conservatives regard the rightward push of the SCOTUS as one of their most successful efforts of the past forty years. They will guard it fiercely.

The Supreme Court: The Republicans Are Focused on Moving It to the Right

The single most effective Republican initiative over the past 25 years has been to replace progressive judges with reactionary, conservatives at all levels.

The Supreme Court is merely the most visible court but it has shifted strongly to the right

Current members
John Paul Stevens (Ford) was regarded as moderate now part of the “liberal” wing he is 88 years old will likely retire next year
Antonin Scalia (Reagan) a staunch conservative
Clarence Thomas (Reagan) staunch conservative with a chip on his shoulder
David Souter (Bush 1) moderate, apparently interested in retiring
Anthony Kennedy (Reagan) moderate/conservative
Ruth Ginsberg (Clinton) liberal, 75 in mediocre health will likely retire during the next four years Steve Breyer (Clinton) moderate/liberal
John Roberts (W Bush) staunch conservative
Sam Alito (W Bush) staunch conservative

So you only have 2 Democratic appointees who regularly align with Souter/Stevens to create a moderate bloc. Kennedy is the swing vote although certainly no progessive.

Scalia/Thomas/Alito and Roberts are a solid bloc of staunch conservatives.

There are 3 likely spots that will open up in the next President’s term all of whom are in the current progressive bloc. If just one goes to a conservative, the Court will swing immediately to hard core conservative. While a Democratically controlled Senate will influence any appointee there is no way of them to realistically preclude McCain from appointing another conservative with a smile like a Roberts for instance.

While overturning Roe v. Wade would in some respects energize the left it would still be a massive step back for the country. In the mean time, stem cell research and dozens of other more subtle steps would be taken to move the US from its position as a source of liberty and progessiveness to a withering bastion of reactionary legal philosophy.

In the mean time the Republicans have been filling regional federal courts with their appointees who receive far less scrutiny than the Supreme Court.

Ensuring a reasonable judiciary is one of the core reasons one should vote Democrat. The Republicans keep pushing the courts right because many voters do not focus on the courts but I assure you their religious right base does, the courts are one of their FUNDAMENTAL concerns.