Obama Shouldn't Consider Compromising On A Supreme Court Nominee

The models: Felix Frankfurter, Louis Brandeis, Hugo Black

George W. Bush's life prepared him to pick judges based on cronyism, class and tribal loyalties, and a sense of what he could get away with. His picks were among the worst in the history of the judiciary, something that could have been-- and, in fact was-- easily predicted. I doubt any president has been so well prepared as Barack Obama to choose judges. Far, far more in touch with the lives of ordinary American families than any president in our lifetime, Obama also taught constitutional law at the University of Chicago. Today, during a pre-recorded interview that was aired by C-SPAN, he talked a little about the decision he is making regarding his first Supreme Court nominee. Aside from someone distinguished by intellect and empathy, he said he's looking for “somebody who has common sense and somebody who has a sense of how American society works and how the American people live. 'What I want is not just ivory tower learning. I want somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world works.'”

The current court is heavily weighted with former judges; one question is whether Mr. Obama, in seeking a balance, will try to pick someone with political experience as well. Several governors, including Jennifer Granholm of Michigan, have been mentioned as possible candidates.

But Mr. Obama has kept a tight veil of secrecy around his selection process. Administration officials confirmed this week that he has interviewed at least two candidates so far. One is Judge Diane Wood of the United States Court of Appeals in Chicago; the identity of the other, or others, has not been disclosed.

There is widespread speculation that Mr. Obama will pick a nominee before his next overseas trip early next month. Mr. Obama told C-SPAN it is “safe to say that we’re going to have an announcement soon,” but was not specific. He said he hoped to have hearings in July so that a nominee could be confirmed by the Senate with “a little bit of lead time” before the Supreme Court session begins in October.

“One of the things I would prefer not to see happen is that these confirmation hearings drag on and somebody has to hit the ground running and then take their seat in October without having the time to wrap their mind around the fact that they are going to be a Supreme Court justice,” he said.

But Obama's preference for a quick confirmation process will run smack up against a wall of Republican Party opposition. The party plans to use a bitter and divisive over confirmation-- regardless of who Obama nominates-- as a way of raising money from their dwindling but more fanatic base. According to Mike Allen at Politico, "[c]onservative activists have vowed to use the court fight to raise money, fire up their base, identify troops and rebuild their movement, with millions of dollars in advertising planned."

As for Obama's hope to find somebody "who knows how the American people live," unless he means someone who has read about it, studied it in a think thank, or been briefed about it by a team of aides, he should keep in mind that the median household income in our country is around $48,000. Few people who have spent more than a decade earning ten times that have a clue "how the American people live." There's a tendency to assume financially successful people are pillars of society. But as Matt Taibbi pointed out we should disabuse ourselves of that notion. "These Wall Street players are enormously compensated," he wrote, "which supposedly means that society highly values their work and is willing to pay them a premium to do it. Having been given that kind of responsibility and trust, these assholes should not then force us to police them as tightly as we police those who we expect to steal from us, like third-rate car salesmen, telemarketers, hookers and three-card monty dealers. With that kind of money they should be setting an example. We are paying them as though they are leaders of society, so they should lead. Instead they ripped us off like common criminals. I mean, the level of morals here is astonishing. In my entire life I’ve never met a drug dealer who would even think about trying half the shit that banks like Goldman Sachs and Citibank pulled during these years." That said, we have every reason to believe that Obama's choices for this nomination and for all his judiciary nominations will bring the court far more balance, not just in terms of gender, race and wealth, but, hopefully, in terms of the propensity of Supreme Court judges being shills for corporate rule. If there is one thing Obama needs to find in a judge-- and I believe this is why the Republicans absolutely freak out when he uses the word "empathy"-- is a willingness to interpret law from the perspective of ordinary working Americans, not just through the eyes of the ownership class. At least Obama, unlike Bush, will be aware of who the greatest Supreme Court judges of all times were-- and why: John Marshall, Oliver Wendell Holmes, Earl Warren, Louis Brandeis, William Brennan, Hugo Black, William Douglas, Felix Frankfurter, and Benjamin Cardozo.

Ken suggested that I take a look at the Jeffrey Toobin piece on Chief Justice John Roberts in the new New Yorker: No More Mr. Nice Guy-- The Supreme Court's Stealth Hard-Liner. I'm glad he did and I'm glad I did. It helps inform where the Republican right's mindset is on the Court. The first thing-- other than his unfortunate age-- that people realize about Roberts is that he grossly misrepresented himself at his confirmation hearings. He tried to sound like a mainstream conservative, almost a moderate. Only 22 senators saw through that but among those who didn't were Chris Dodd (D-CT), Russ Feingold (D-WI), Robert Byrd (D-WV), Ron Wyden (D-OR), Patrick Leahy (D-VT), and Carl Levin (D-MI). Even Dianne Feinstein and Evan Bayh saw what Roberts really was! When he claimed, calmly that his tenure would be marked by "modesty and humility," and that "Judges are like umpires; umpires don’t make the rules-- they apply them," then-Senator Obama didn't buy it. And Obama, Feinstein, Bayh and the other 19 were right. Toobin's point today, four years later is that Roberts' record is that of a "doctrinaire conservative." Toobin is being polite. There's nothing conservative about the record. John Roberts is a radical right activist and a dangerous ideologue.

The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

...In a series of decisions in the past four years, the Chief Justice has expressed the view that the time has now passed when the Court should allow systemic remedies for racial discrimination... When Antonin Scalia joined the Court, in 1986, he brought a new gladiatorial spirit to oral arguments, and in subsequent years the Justices have often used their questions as much for campaign speeches as for requests for information. Roberts, though, has taken this practice to an extreme, and now, even more than the effervescent Scalia, it is the Chief Justice, with his slight Midwestern twang, who dominates the Court’s public sessions.

It's incumbent upon President Obama to appoint judges to counterbalance this partisan, ideological trend represented by Roberts and backed up by Scalia, Thomas, Alito, and, more often than not, Kennedy. If Brandeis, Frankfurter and Black are the model, this crew is the anti-model.


UPDATE: Could Jennifer Granholm Be The Answer To Roberts?

No one outside of Michigan knows much about her, beyond her good lucks, her Canadian birth and the fact that she was just re-elected governor of Michigan. Today's NY Times though, paints a picture of her as one tough cookie. A former federal prosecutor and state Attorney General, her legal record is dead-center. “As the A.G., in my judgment, she never showed a strong passion for the right or left of center,” said Steven A. Freeman, a criminal defense lawyer in Lansing, Mich., who estimates that he faced off in court with Ms. Granholm’s team on at least 60 cases. “If you didn’t know her, you couldn’t tell if she was a Democrat or a Republican, conservative or liberal.”

To some, Ms. Granholm’s legal style, or absence thereof, is a clear asset because it shows that she put the issues of the law ahead of any personal agenda. Despite favoring abortion rights, for instance, she defended the more conservative views of the Republican administration in Michigan in the late 1990s on abortion. In one opinion as attorney general, she stated that taking RU-486, known as the abortion pill, was legally tantamount to having an abortion.

As governor, however, she has generally opposed anti-abortion legislation. She twice vetoed bans on a particular procedure called partial-birth abortion by critics. And while she has stopped short of supporting same-sex marriage, she has ensured legal protection of domestic partnerships and issued an executive nondiscrimination order for state employees.

...[S]ome Democrats fear that while she is a strong-willed voice for the concerns of her state, and is often characterized as a liberal Democrat, they do not know enough about her legal philosophy to count on her being a champion for liberals on the Supreme Court. Many Democrats are hoping for a nominee who can stand up to the court’s powerful conservative voices, including that of Justice Antonin Scalia.

...“If President Obama wants somebody who understands what the law means and its impact on the people, Jennifer Granholm would bring that to the court,” Mr. Keenan said. “She’s out there every day, at factories, dealing with workers, with students, working to bring in new jobs and save the old ones. She’s not from the cloistered halls.”