Will 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."