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TechnoratiWill Obama Move Supreme Court Rightward?
I learned long ago, while working at the media watch group FAIR, to be wary of New York Times headlines.
Hearing news that President Obama has a shortlist of candidates to replace David Souter on the U.S. Supreme Court, I dug up a front-page New York Times Week in Review piece written soon after Obama’s inauguration about his possible impact on the Court. It was headlined: “To Nudge, Shift or Shove the Supreme Court Left.”
I’d like to see Obama shift or shove the Court leftward. But after reading the article, I realized that it could just as easily have been headlined: “Will Obama Move Supreme Court Rightward?”
The centerpiece of the Times article was a fascinating study conducted by two University of Chicago law professors (one of whom is a conservative federal appeals judge) analyzing the judicial records of the 43 justices who’ve served on the Supreme Court since 1937. Four of the five most conservative judges of the last seven decades (Thomas, Scalia, Roberts, Alito) now sit on the Court. With Anthony Kennedy at number ten, five of the ten most rightwing judges are currently on the Court. The current majority, in other words, is almost a conservative all-star team.
By contrast, among the ten most liberal judges since 1937, the only sitting justice is Ruth Bader Ginsburg – she’s number nine. Today’s other three “liberal” justices (Stevens, Breyer, Souter) are in the top 15, but outside the top ten.
All in all, that’s a rightwing-dominated Supreme Court.
The study gives credence to the claim of Justice John Paul Stevens (age 89) that he hasn’t moved left since being appointed by President Ford in 1975, but that the Court has moved right. And it backs Stevens’ assertion that “every judge who’s been appointed to the Court” since 1971 “has been more conservative than his or her predecessor” – with the exception of Ginsburg (who recently underwent surgery related to pancreatic cancer).
The question facing Obama: Will he continue this trend of shifting the Court rightward?
Unfortunately, from what we’ve seen of Obama’s general penchant for “moderate” appointees who don’t inflame Republicans, it’s quite possible the Court will continue trending rightward – if liberals get replaced with less liberal appointees. After Souter, the seats Obama is most likely to fill are those of the two most liberal justices: Ginsburg and Stevens.
One of the most depressing aspects of the Obama era is how he has gotten away with so many centrist/corporatist appointees with such muted criticism from the left. That better change when it comes to crucial LIFE-LONG judicial appointees.
Whom Obama chooses for these posts is arguably more important than his choices of Biden or Gates or Hillary Clinton.
On this topic (like others), Obama speaks eloquently. . . out of both sides of his mouth. In revealing comments to the Detroit Free Press last October about his models for Supreme Court picks, Obama praised liberal lions Thurgood Marshall and William Brennan of the Warren Court as “real heroes of mine.” Then he added: “But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”
After noting the Warren Court’s powerful role in taking on racial segregation, Obama added a typically frustrating caveat: “I’m not sure you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. . . So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.”
Obama is a smart guy. He knows that even the most “common-sense/pragmatic” nominee will bring (often-feigned) outrage from conservatives. Rightwing groups are gearing up to raise funds and build their mailing lists by pouncing on whomever he chooses. They’d yell even if he selected 79-year-old recently Republican Arlen Specter.
After Souter announced his retirement, rightwingers jumped on Obama’s sensible statement that he would look for “that quality of empathy, of understanding and identifying with people’s hopes and struggles.” That’s code, claimed conservatives, for a liberal activist judge. And Obama is looking to replace Souter with a woman, person of color or both.
Rightwing theatrics aside, the reality is that unless Obama restrains his compulsion toward centrist consensus and appoints real progressives to replace not only Souter but Ginsburg and Stevens, our rightwing court may get even more conservative.
George W. Bush appointed mostly rightwing ideologues to the federal courts, and put Alito and Roberts on the Supremes. Republican-appointees and rightists now dominate the federal judiciary. Meanwhile, Bill Clinton prided himself on choosing mostly moderate judges – praised by the same elite pundit chorus that now praises Obama’s “pragmatic” choices.
A tepid replacement for Souter (and Stevens and Ginsburg) would maintain a rightwing status quo on the Supreme Court; as University of Chicago law professor Geoffrey Stone told the Times: “The right side is very bold and very conservative. The liberal side is not bold. They are incrementalists. They don’t set the agenda.”
But if Obama were to break his habit and replace retiring liberals with a bold progressive or two, Professor Stone argues it would seriously change things: “A really powerful, articulate, moral, passionate voice on the left would really change the dynamic on the Court. It would pull the other justices who are inclined to be sympathetic to that voice in that direction. It would shift the center of the discussion — about what’s the middle.”
With a Democratic-dominated Senate, President Obama is free to make a bold choice. I’m not holding my breath.
Especially after seeing this clueless comment from Senate Judiciary chair Pat Leahy, who’s gone over possible Souter replacements with Obama: “I don’t like to see an ideologue of either the right or the left. I don’t think we’re going to have one.”
39 Comments so far
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President Obama might choose Federal Judge Marjorie O. Rendall of the Third Circuit Court of Appeals. She would be an outstanding Supreme Court Justice, and I believe would be easily endorced by most of the U.S. Senate/
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TOO LATE ! Ya'll voted for him so why would he care to read what we have to say about it? Our goose is cooked !
Go watch your west wing, folks. What we need to do is get Thomas to resign, so we can replace him with the right-wing nut job, and then replace the liberal with a real liberal. Who's with me?
"Will Obama Move Supreme Court Rightward?"
This will be his defining moment. Where President Obama shows his true colors. He will gain more support from the progressive netroots that put him in office, or lose it all with this nomination. It all depends on his choice of SCOTUS.
He showed his true colors a long time ago. Obama's Bushier than Bush (I just love this), why are you waiting for his Supreme Court nominations?
President Obama's keeping to the middle of the road even as that elusive middle moves ever rightward. What it amounts to is that our president's refusal to fight for progressive causes leads him to capitulate to right-wing pressure. Which means he's nothing but a reluctant right-winger. And what about the change we can believe in? Well, it's looking more and more like the only way that'll come about is by way of a mass uprising. Ready everyone?
smipypr
I've said this before, and it won't make the whole process any easier, nor will it get any left-leaning justice appointed...Obama can appoint as many people as he wants. Go ahead, nominate five or six candidates. Make it a nice mix. Do some horse trading and 1. Enlarge the Court; 2. Squeeze a true, at least at first, lefty onto the bench. There is no constitutional limit to the number of justices. Screw tradition - throw a whole pile of nominees, and more will stick. Of course, when I wake up, there will one nominee, and no one will be happy.
The math involved in this question is simple: if Mr Hope-and-Change nominates anyone less liberal than Souter, he moves the Court rightwards.
The odds overwhelmingly favor that Obama's nominee will be less liberal than Souter -- who after all, at least had the integrity to vote against the stolen election of 2000. (Obama has never publicly said a single critical word about Bush v Gore.)
It wouldn't surprise me a bit if Obama actually nominates a Republican -- & I hope he does so, to teach the lib-tards a lesson about what you really get when you vote for a Democrat. It would be of a piece with everything else Obama has done.
It doesn't matter who Obama selects. The only job of a justice appointee once confirmed is to make judgements based on interpretations of the law. They may not be agreeable but as long as they're within the legal bounds, no problem. Yeah, I would have loved Nader too but you see, not even Naomi Klein supported him which is another reason I distrusted her.
Since Obama's policies are the same as BushCo's, he will seek "justices" that will approve of his policies. This means he will nominate "conservatives"--maybe not the same Christian Right types Bush would, but just as anti-democratic/pro-authoritarian.
Making the justices for the Supreme Court subject to election is one of the changes I make in Constitution 3.0 in order to lessen the power of the executive while increasing the amount of democracy enjoyed by the populace.
Sioux Rose
RICH M: Alas! The return of Jedi! Welcome home, the FORCE needs you!
Amazing how DPAs keep coming back and plunking down their coin for a prime seat at Obama's barnstorming "Rope-a-dope of Hope" tour.
Each time, you believe you are spectators come to see The Greatest dispatch his opponents in the ring. But each time, YOU are the ones left flat on your backs while the arena ceiling spins above you.
There are no "Democrats" and "Republicans", folks. There is The Party. And you ain't in it.
Cohen must he kidding.
Is this a rhetorical question?
After realizing that obama was anything but a president for the people, which I figured out in his campaign when he guaranteed corporate america and the american izraeli public affairs committee the full support and backing of the american government, against the majority of the people's will, I knew he was more than the democrat figurehead of an antidote for the conservative thugs that continue to ruin this country and not to mention the difference between dems and repubs is less than 1/2%.
When gingsberg was reported with cancer, I thought this would not affect the polity of the court as one of the true conservatives, like kennedy, would have to die or step down for the court to swing left, liberal or what have you but when I considered all of obama's 'about faces' from his campaign, it became very likely and apparent that any of his choices for nominating a new justice to the supreme court would most likely be conservative, hopefully not the ardent federalist like alito, scalia, roberts or thomas but well, a corporate puppet.
It will be interesting how the 2012 elections play out for america or should I say corporate america because the stupid voters here just cannot get past that 'dem or repub or repub or dem' mentality as if there is no other choice and breaking that barrier and electing a 3rd party not just for president but also the senate and the house would be a most earthquake experience for the U.S.A.
Will Obama Move Supreme Court Rightward?
_______________________________________
My Magic Eight-Ball says, "Signs point to 'yes'".
· Yr Obd't Servant
Yeah, as I recall, for a lot of you lot, your choice was Obama because he would make a better choice when it came to the supreme court.
After all Obama's brilliant appointments to run the expanded wars, wellfare for freudulent banksters, kangaroo courts in a politicized (look forward) justice dept., and off the table not so universal healthcare, How confident are y'all feelin' about his judgement now?
"How confident are y'all feelin' about his judgement now?"
Confident enough to know that McCain would have appointed a justice more to the right than Obama. Far better choice than one of dragging this nation further toward the Dark Ages.
I don't like Obama's slant toward the right, but given the choice we had, I'd take him all over again. It's time we figured out another approach 'cause in less than 4 years we'll be faced with the same Faustian bargain.
Our choice in politics is bad or worse. Whether we like that or not matters little to the winner.
You got me. At least I won't make the same mistake in '012.
As I remember it, for Obummer's fan-club the sole Supreme Court factor was Roe v. Wade. For most people, especially women, that's important but I wouldn't call it the most important by a long chalk. However, it's clear now that he won't be interested in nominating any judges who are likely to overturn any of the worst economic, social or political SCOTUS decisions, like the execrable money is free speech or corporate personhood.
I knew this guy was a bummer. I hoped and hoped I was wrong (just like I did for Clinton!) but I wasn't and I take no pleasure in being right. The worst of it is that, while Clinton became little different from Bush I, Obama is imitating his catastrophically worse son. Yes, it's nice to have a president who can speak in complete sentences after 8 years of incomprehensible garbage, but dressing up ghastly policies in flowing grammatical periods doesn't make them better policies.
Rainborowe
Day by day, Obysmal tip toes rightward toward Bushington, D.C. and Jesusland. He is attempting the same thing that Karl Rove and the Republicans tried, to create a permanent majority in the executive and legislative branches. He is apparently unaware of Shears' Law: "There is always the unexpected." It will chew him up just as it chewed up George Wanker Bush. When it does, I won't give a rat's ass. The problem is, it may return the Republicans to power to finish off the USA.
I am not in the authors camp on this one. Frankly the only way to shift the court left would be for Kennedy to croak. Also I have read many on his list and not sure how you can objectively compare them minus Elena Kagan (clearly Bush sympathizer) to Roberts, Thomas, and Alito. Look Obama has taken a centrist tone to most debates that is quite disappointing but I defy anyone to tell me how we can get worse than Rendquist apologists and Robert Bork sympathizers.
Of course you are not. Obama says jump, and the herd asks, "How High?"
Obama=most liberal president in the last 30 years
Answer to title of article=NO!
People who disagree=lost in their own need to demonize the presidency.
Sigh......
I admire people who disagree; fear is not challenging those in power. The Nazis rise to power followed similar norms. An engaged voter is an empowered voter. Going along with the program is an exercise in wimphood.
On the issues of economic justice, privacy rights, foreign policy, etc ... YES. On petty social issues, who knows? Besides, there are far more lower courts that are staunch rightwing and need to be moderated.
How fitting! Why should this come as a surprise? Obama just appointed Cheney's assassination General to head up Afghanistan. He sold us out on FISA and TARP. AIPAC owns the man. He is escalating the war in Afghanistan and conducting covert air strikes on non-combatants in Pakistan. He is engaged in another environmental fantasy called "clean coal" the most egregious source of energy on the planet, and the most abundant; in fact, its use as a primary source of energy is increasing, not diminishing. (I recommend you read, Big Coal: The Dirty Secret Behind America's Energy Future by Jeff Goodel as to why coal is NEVER GOING TO BE CLEAN AND WHY IT IS DESTROYING OUR PLANET.) Obama has also sold us out on Single Payer promising during the campaign that his health plan would not mandate coverage for Americans who cannot afford it; now it appears he will mandate it because the corporate insurance industry owns him too.
Now comes News that Obama might appoint a conservative judge; this was one of the main arguments prior to the election by the apologetic wing of the Democratic Party asserting why we ought to vote for Obama. We were told, Obama would reverse the rightward tilt by naming a liberal. Turns out, Obama is another con artist in the mold of Reagan.
More change we can believe in apparently. "Yes we can!" Get screwed again.
The more things change, the more they stay the same.
Brand Obama a product of the same company that manufactured a brew called Full Bodied Bush. Now we have Bush Light a full bodied lager with a Dark twist.
Sioux Rose
ELOHIM: Well-stated, what a sorry score card for the man from Hope-not.
The main thing is that he appoint a fair minded thinking person that has been a judge. The Supreme Court should represent the whole population, not just one small segment.
I saw Janet Napalitano's name on a list they floated. Shame on the person that put that inept fool on the list.
"The main thing is that he appoint a fair minded thinking person that has been a judge. The Supreme Court should represent the whole population, not just one small segment."
AMEN ! How many people on this forum ever read about the basic structure of US government? Even the most elementary education in understanding the basics of government would tell one that the Supreme Court, aka the judicial branch, is supposed to be independent which it generally is. Their only job is to interpret the laws and the Constitution and pass judgement which I thought was the meaning of being fair minded. I may not be satisfied with the outcome decision in certain cases but I'll accept. I may not like it that some judges will interpret the Constitution in ways that it tilts towards an ideology I may not like but I understand their general duty and since they're doing it within legal bounds, I'll accept it even if I don't like it.
By the way, what is it about Napalitano that doesn't qualify her? I only know that she was the governor of AZ.
Sioux Rose
THOMAS: Let's take a cue from Fox Tv's misplaced moniker, as per "fair and balanced." The court, as the article profoundly describes, is ALREADY representing the conservative/rightwing population, and only the "mild mannered" centrists even remotely represent the views of the left, or progressives. The point is there IS no balance on this court... the whole thing has been swayed so far to the right as if some cosmic event moved the entire compass.
I do not think Obama will put someone on the court who will fit the necessary description because he has proven a sell-out 88% of the time. History will not be kind to him who arrived with all the magic buzzwords, harnessing a population's disgust for its former misleaders, only to perpetrate policies amenable to the same elite interests. The betrayal is of enormous proportions, and made tragic given that time is running out on the cosmic clock insofar as: 1. global warming/climate change 2. the further courting of massive war, a Middle East inferno being purposely spread further into Afghanistan/Pakistan and perhaps beyond 3. the $ is gone, apart from that being irresponsibly printed hot off the press to effectively water down the value of all that's currently in circulation. This is no time for the old medicine that brought about the diseases in the first place.
Obama is beginning to remind me of Al Jolson doing an effective tap dance (one approved by his elite paymasters) to placate the crowds.
Here we go again. Appoint a hardcore leftist and you think that'll fly? Not in this Senate ma'am. Thomas is right. The Supreme Court, aka the Judicial Branch, is supposed to be independent of the other two branches and what's wrong with picking justices that represent everyone instead of the hardcore few? The Supreme Court does not have control over Congress and/or the president sending troops to war. And giving them social issue litmus tests on stuff like guns, abortion, affirmative action, same sex, school prayer, patriotism, etc ... is just not right. They may not personally believe in it but that does not mean they will go against the Constitution. They may interpret it more in favor of one ideology over another but that doesn't mean that they'll sidestep the Constitution. Even the Court had all rightwingers, Roe v Wade would never be overturned, affirmative action would never be abolished, same sex marriage would never be outlawed, etc ... All these social issue litmus tests being misused by both sides is nothing more than a sideshow distraction. In the meantime, Wall Street is greasing up its palms and preparing to put forth more corporatist "justices" on the Supreme Court who have no regards for the people's economic justice, the environment, privacy rights, product and consumer safety, that kind of stuff.
I rarely agree with you, but here I think you hit the nail squarely on the head. Good comment!
Perhaps because the "you" is two or more ?
Thank you, Jeff, for sounding an early alarm bell on what Obama might do for (or to) the Supreme Court. With the latest (I guess, it's hard to keep up they come so fast and furious) Obama dive to the "center" with his nomination of a pollution lawyer to head DOJ's anti-pollution effort, his defenders are forced more and more to the last line of their defense: that at least he would appoint a more "liberal" Court than his late presidential opponent would have done. When that line is breached by yet another thrust of the President's "pragmatism," where is that going to leave the defenders? You rightly say that some serious noise needs to be made from the precincts of progressivism (normally very quiet if not complacent precints) if ever, on any issue whatsoever, are the "Progressive for Obama" going to hold his feet to a fire when they have so far had only wet matches and pom-poms for cheering.
The only job of justices once appointed is to make judgments based on their interpreations of the law. They may slant their interpretations towards an ideology neither you nor I like but they can only go so far with it. Even the most conservative justices have lightened up from time to time.
maxpayne--
You babble cliches and no-cal thoughts. I have never seen you make an intelligent or informed comment about anything.
You should do yourself--and this blog--a huge favor and hang up your cleats. You contribute nothing but the clutter of your derivative burble and incoherency, in thread after thread after thread.
It's not as if you ever made any intelligent or informed comments yourself. You wouldn't even know what one was to begin with. I'll post what I want and if you don't like it, that your problem dumb fuck.
Activist Judge: Any justice who has ever made a decision against a corporate interest.
Well said and absolutely true.
If you read all the earlier (perhaps even current) cases on railroads (most of these are taught in civil procedure classes in law schools), you will see corporations always win. If there was a railroad case (now any big corporation), you didn't have to read the case to know who would win--railroads always won.
That's why this "conservative-liberal" dichotomy is misplaced. Yes, their may be a divide amongst the justices on social issues such as abortion, but most (over 90%) of the cases heard by courts are about day to day lives of most Americans (e.g., cases about injustices at work place, injuries, contract disputes, etc.), and there is no clear divide between the justices on these issues--they are all conservatives when it comes to taking a side between a common person and a corporation--they are on the side of the businesses against people.