Sure, the election makes things even worse for the federal judiciary, but we knew that going in, didn't we?

by Ken

On the most obvious level, if this White House couldn't get its judicial nominees confirmed by the Senate with a majority ranging, at least theoretically, from 58 to 60, what do you suppose the odds are now? Especially now that the Party of No has proof positive that Obstruction Works™. Basically, the administration's way of standing by its picks has been more or less like an especially craven trick-or-treater's: ring the doorbell and then run like hell. At least the trick-or-treater maybe has that trick up his sleeve. At the slightest sign of confirmation opposition, the Obama White House's Rahm-tested technique is to cut and run for dear life, and if anybody asks, we never heard of the poor bastard.

Then when it comes to the higher-level judgeships, the Obama administration has been so cowardly that it's scary to imagine those people going into truly "defensive" mode. It goes without saying that Supreme Court Justices Sotomayor and Kagan represent infinite-orders-of-magnitude upgrades over anything we could have expected to come out of a McCranky administration, or than we can expect to come out of, God help us, a Romney or Palin or Beck administration. These are perfectly competent legal people, and I wish them long and honorable service.

At the same time, as far as we can tell, they represent considerable pullbacks to the legal center from the justices they replaced, Souter and Stevens. Partly this is the apparently standard Obama "negotiating" strategy of setting an initial negotiating position by splitting the difference and then giving away whatever is left. Partly it reflects the president's apparently basic right-of-center orientation. Do we have any reason to believe that anyone in a position of decision-making power wanted a justice more committed to the traditional liberal understanding of constitutional values?

Meanwhile, the confirmation process has become worse. It's now totally under the control of the Right. No, they didn't put up much of a fight, but then, why should they have? Sotomayor and Kagan were replacing justices who were already outside their sphere of influence. In all likelihood would be less pesky from the right-wing standpoint than their predecessors were in their very different ways, but the fact is that as long as the High Court's hard-core extremist majority holds, the minority justices are pretty much irrelevant, except insofar as each of them, because they have actual principles, will occasionally be picked off to support the extremist majority.

REMINDER: IT WASN'T LIBERAL JUSTICES
THAT SOTOMAYOR AND KAGAN REPLACED

I think it's important to restate at every occasion that we're not talking about replacing liberal justices. As much as I respect the sitting centrists on the current Court, there hasn't been a liberal jurist among them since the retirements of William Brennan (1990) and Thurgood Marshall (1991).

The reality for the present and foreseeable future is that no liberal can ever again be considered for the Supreme Court.

So while the truly loathsome creatures who occupy the Republican seats on the Senate Judiciary Committee (my goodness, what a bunch!) now have the confirmation process entirely on their terms; the ground rules are now fixed and unchangeable:

(1) No candidate farther left than dead center can ever again be given consideration of any sort, whereas no limit of rightwardness exists.

(2) No nominee can be confirmed without pinky-swearing allegiance to the right-wing booby-mantra of "just applying the law," thereby guaranteeings that anyone who comes out the other end of the process must by definition be either a liar or a legal ignoramus, because anyone with the legal qualifications to, say, watch The Good Wife, let alone sit on our highest court, has to know that "just applying the law" is literally meaningless.

It still seems to me that the next Supreme Court justice to need a replacement is going to be Justice Ginsburgs. The fact is that no meaningful change in the Roberts Court can be hoped for until once of the extremists justices depart, and there seems no immediate prospect of that. When it happens, though, the new rules of selection and confirmation are going to come into play, savagely.

Of course the judicial arbiters of the Right have now made it crystal clear that with judicial appointments, as with everything else in American political life, lying is not only permissible but mandatory, as long as the lies are right-wing ones. The previous two nominees, John Roberts and Sammy Alito, blithely lied their way through their kid-gloves confirmation proceedings. Far from "just applying the law," they have set out to systematically rewrite the Constitution.

Most of us have had a general sense of the extremist block on the Court, apparently now under the personal management of Chief Justice Roberts, has gone about its work of writing a new Constitution. We've seen, in such well-publicizied instances as the gun rights cases and the Citizens United decision legitimizing unlimited corporate cash for election-buying, the broad strategy: deciding what portions of the Constitution or exististing judicial precedent -- which Roberts and Alito swore to respect (ha ha!) -- they wish to rewrite, then finding the cases and instructing the litigators how the cases are to be argued, and of course then abandoning the old-fashioned principle of deciding cases on the narrowest legal grounds necessary for a decision.

Now, however, it turns out that this is only the public face of what Roberts et al. doing, and literally the least of it. My attention has only been directed to and Oct. 4 Slate piece by Barry Friedman and Dahlia Lithwick, "Watch as We Make This Law Disappear," we've gotten a glimpse of the magician-like skills being perfected the the Roberts Court to perform their wholesale constitutional rewrite while keeping it mostly hidden, following the great insight developed by the right-wing think tanks that in much of our political life it's perception that matters rather than reality.

It's a piece that no one with any interest in our system of judicial review can afford to miss. We're going to need to talk about it, I hope over the weekend.

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