Sunday, May 24, 2009

Justice Souter and the Supreme Court

The leak was like a thunderclap across the cable television's landscape. United States Supreme Court Justice David Souter informed President Obama that he intended to retire as of June of this year. The timing is designed to give the President the time to name, and get confirmed, a replacement who would be in place for the new session on the first Monday in October. Souter, 69, is said to be tired of Washington, DC, and wishes to return home.

Thank God that Barack Obama is the President of the United States and not John McCain. McCain. McCain had said he would appoint justices of similar outlook and temperament to Justice Antonin Scalia; and the result would have been the overturning of Roe vs. Wade among other contentious issues the court would handle. Who sits on the Supreme Court effects every American; and that effect can last 20-30 years depending on the age of the appointee. Yet, in poll after poll, Americans rarely have the issue of the Supreme Court even in the top ten issues they care about when voting for President.

I tried to interest people in the issue of the Supreme Court during he race between President George W. Bush and Senator John Kerry. For months I railed about what would happen if Bush won. Iraq was nowhere near as important an issue as who Bush might appoint to Supreme Court vacancies should he win. Questions about Presidential power, illegal spying and wiretapping, torture, illegal search and seizure were all going to come to the court and yet it was nearly impossible to get Americans to focus on the court as an election issue. Polls showed that in 2004, the issue of the Supreme Court was not even in the top 20 for most voters. It was beyond frustrating to face such apathy or disinterest among the electorate.

With Souter's announcement, the President has the opportunity to add a new member to the court who will maintain the current status quo and, if young enough, outlast some of the regressive justices appointed by Republican presidents over the years. In 2004, the re-elected President Bush was given two chances to put his stamp on the court for years to come. He did not fail to move the court in a more regressive direction. He appointed Justices Alito and Roberts; and with these choices widened the ideological gulf on the court. With Roberts as Chief Justice, and by replacing centrist Sandra Day O'Connor with a regressive ideologue; the President ended up with a pro-business, anti-consumer, anti-regulation, and constitutionally suspect majority to protect Republican gains even as the nation rejects much of the party's ideologies in election after election. Now Obama must do the same thing. It's time for progress.

The President says he wants the new Justice to be a person of empathy. He wants someone who knows how hard it is to raise a family, save money, keep a job,and live in a world where many times you feel powerless and discriminated against. Immediately, Republican Senator Orin Hatch condemned Obama's comments and called "empathy" a codeword for appointing an "activist" judge. Senate Judiciary Committee Chair Patrick Leahy responded to Senator Hatch that the Court is already packed with activists that Senator Hatch loves because "they are regressive like he is."

For those of you that voted and rejoiced over the election of Barack Obama, now you will get to see if your faith in him is well placed. One of Obama's tendencies in office so far has been to avoid controversy when he can and give the appearance of someone seeking consensus at all times. This is not the Obama we need on this issue. This is not the time for moderation or consensus. Neither Alito nor Roberts are moderate; nor did George Bush care about consensus. He shoved through their nominations with the acquiescence of many weak and frightened Democrats. Obama cannot allow himself to be pushed or prodded or cajoled into seeking a consensus nominee. He needs to choose a Progressive. He must pick someone who reads the Constitution as a living, breathing document, rather than one frozen in time in 1788.

This is time for political hardball. This is the time to use some political capital to get a nominee who will add Obama's stamp to the court. This is the time for the President to let it be known that he will brook no dissension in the ranks. Every Democrat has to understand that this is one of "those" votes. Yes, it would be nice to get some Republican votes to confirm whoever the President nominates; but it's not necessary nor is it valuable enough to derail a good nominee. As for the nominees themselves, he or she (and it would be good to appoint another woman to the court) should follow the pattern of recent nominees when they appear before the Judiciary Committee for confirmation hearings. When asked their opinion on issues like abortion, school prayer, torture, illegal wiretapping or stem cell research, etc.; they should respond exactly like Alito and Roberts did during their confirmation hearings by saying nothing. They can remind senators that they may be required to rule on many of these subjects in the coming years; and they don't wish to pre-judge the issues at the moment. They can respond that they really haven't given a lot of thought to these issues up to now (a famous response given by a regressive nominee when asked about a woman's right to choose, and yes, he was confirmed anyway). Obama's nominee can respond to contentious questions by promising to "keep an open mind and look at all sides of the issue", knowing full well that they already have made up their minds; but there is no reason to share these thoughts at this time. In other words, the nominee should duck, bob, and weave through the minefield of questions, and if pressed for specifics; remind Senator Hatch and his regressive colleagues that they are getting the exact same responses to their questions that proved perfectly acceptable from nominees of their same ilk.

I would love to see the President nominate a brilliant thinker, accomplished writer, and a person possessing great oratorical skills. I hope he nominates someone passionate about the law. We need a nominee who believes in the Bill of Rights, particularly a strong proponent of the Fourth Amendment protections against unreasonable search and seizure. (kidnapping, rendition, national security letters, illegal spying and wiretapping anyone?)

One group the president should avoid is anymore Catholic nominees. The Regressive wing of the court is made up entirely of Catholics. Scalia, Thomas, Alito, and Roberts are all Catholic. Anthony Kennedy, a frequent swing vote with the Regressives, is also Catholic. Surely the President can find someone to nominate who doesn't look to Rome for guidance. (Remember these are Catholics from the Torquemada wing of the Church...for them the Pope speaks directly to and for God.) Maybe it is time for our first atheist on the court. Would an atheist be any less wise or knowledgeable as a theist?

Once again there will be great noise and thunder from regressive radio about how the President must nominate someone who represents all the people. The corporate media will also pressure the President not to appoint anyone pro-labor or who believes in the legality of government regulation. The US Chamber of Commerce and the business lobby will call for someone who respects the free market; while the social regressives will demand a nominee who is anti-gay, anti-choice, and in favor of Christmas displays in the town square. The President needs to receive pressure from you to fulfill his promise of a nation that is open to all and a government that protects the weak and vulnerable from the powerful and rapacious. You have to create such pressure that he cannot backslide even a little. Will you? What do you think? I welcome your comments and rebuttals. Please send them to

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