Obama And Romney The Same? The Matter Of Supreme Court Appointments

Friday, Michael Keegan, president of People for the American Way, penned an OpEd for HuffPo about the dangers a President Romney would pose to women's rights. Like so many of us have noticed, Keegan points out that Romney has been covering up "his actual positions on everything from reproductive rights to women in the workplace, in a desperate attempt to convince voters that he actually cares about women's lives."

My rule of thumb is, whenever Romney changes his positions and tries to sound reasonable, I think about what his Supreme Court would do. With many issues, the damage a Romney presidency would do in four years is eclipsed by the damage a Romney Court would do in 40. Women's rights are no exception. Let's break it down.

Asked about equal pay for equal work, Romney went into a bizarre, now famous rant about how he demanded "binders full of women" to fill jobs in his administration in Massachusetts. The story was not only strange and condescending, but also turned out to be a lie. He also boasted of providing flexible work hours to his chief of staff, a woman who wanted to be home in time to cook dinner for her family. It's admirable that Romney provided her with the flexibility that she wanted, but it's stunningly old-fashioned that he assumes all women in the workplace would have the same needs and that men are apparently exempt from such responsibilities.

Here's the reality of Romney's position on workplace inequality. His campaign has never been able to give a straight answer on whether he supports the Lilly Ledbetter Act, which ensures that women can sue their employers for pay discrimination. And he's promised to appoint Supreme Court justices like Antonin Scalia, Clarence Thomas and Samuel Alito, whose decision denying Ledbetter the right to sue her employer for decades of pay discrimination made the Ledbetter Act necessary in the first place. So look to the Court and you know where Romney comes out on fair pay for women.

...Whenever Romney tries to lie about his agenda, just remember the Supreme Court. Romney has consistently promised right-wing ideologues that he will appoint more of their own to the Supreme Court, and named the infamous Robert Bork as his judicial adviser as a down-payment on that promise. Romney's dangerous agenda, whatever it is, would last for four years. His right-wing Supreme Court could last for forty years. That's a scary thought for anyone who cares about the rights of women.

The National Journal published a look at how appointments in the next Obama Administration and a perspective Romney Administration would differ markedly. Their Supreme Court choices would be especially at odds-- and crucial for decades to come. Moderation-- or even mainstream judicial thought-- will not be on Romney's plate.

Don’t expect Romney to select a moderate justice for the Supreme Court who could morph into a liberal in the fashion of the retired David Souter. The candidate has said he supports a strict reading of the Constitution-- and his Justice Advisory Committee is cochaired by none other than Robert Bork, the conservative firebrand who was denied a seat on the Court during the Reagan administration. On his website, Romney pledges he’ll send to the Court nominees in the mold of Justices Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas. Roberts, however, fell out of favor with Romney after he was the swing vote to uphold the constitutionality of the Affordable Care Act. “I certainly wouldn’t nominate someone who I knew was going to come out with a decision I violently disagreed with-- or vehemently, rather, disagreed with,” Romney said in July after the health care ruling.

There is one clear favorite for a high-court nomination and that’s Paul Clement, the George W. Bush administration solicitor general. Clement, just 46, recently argued against the constitutionality of the Democratic health care law in the most highly watched Supreme Court case of the past term.

Viet Dinh, a former Justice Department official during the Bush administration, would make history as the first Asian-American justice and brings a compelling personal story as the child of Vietnamese immigrants. Another possibility: Miguel Estrada, who was blocked by Democrats from a federal Appeals Court appointment in 2003. Republicans have wanted revenge ever since.

Still other potential choices include Jeffrey Sutton, a judge on the U.S. Appeals Court in Cincinnati (who could be hampered by his decision to uphold “Obamacare”); Diane Sykes, a judge on the U.S. Appeals Court in Chicago; Michael McConnell, former judge on the U.S. Appeals Court in Denver and a member of Romney’s Justice Advisory Committee; Brett Kavanaugh, the former Kenneth Starr aide who sits on the D.C. Circuit Court of Appeals; and Janice Rogers Brown, another D.C. Circuit Court judge who also served on the California Supreme Court.

The next Obama picks are likely to be more moderate, mainstream jurists like Sonia Sotomayor and Elena Kagan. National Journal points out that he's "carried the name of Merrick Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit, in its back pocket for use when Senate Republicans could make confirmation difficult for a liberal-leaning nominee to the high court. Garland is a former high-level Justice Department official who oversaw the prosecution of Oklahoma City bomber Timothy McVeigh and is widely viewed as a judicial moderate. His nomination would likely be a no-fuss confirmation. Having appointed Sonia Sotomayor and Elena Kagan during his first term, Obama may feel less pressure to appoint a woman or a minority if a vacancy arises. But if, say, Justice Ruth Bader Ginsburg retires, a more natural choice could be Sen. Amy Klobuchar, D-Minn., who might be treated more gently by her Senate colleagues than other nominees. Jennifer Granholm, the former Michigan governor and state attorney general, has also been widely mentioned as a possible candidate who could provide a Sandra Day O’Connor-like perspective to the Court. An up-and-comer is Kamala Harris, the  attorney general of California."

Of course, the other important factor for keeping right-wing radicals off the Supreme Court-- aside from keeping Romney out of the White House-- flows through the Senate. When Democrats took a stand against corporate shill and radical right freak Sammy Alito, it was only then-Senator Obama plus two dozen Democrats who were willing to stand up and oppose him. Many conservative Democrats, corrupted by the same corporate cash as Republicans, went right along with the GOP agenda and voted for one of the least suitable candidates for the Supreme Court in any of our lifetimes. In all, 20 Democrats voted with the GOP to shut down the filibuster, and not just the usual suspects like Ben Nelson, Joe Lieberman and Blanche Lincoln either. That's makes the election in two weeks of principled progressives like Tammy Baldwin (WI) and Elizabeth Warren (MA) even more crucial. Their opponents, Tommy Thompson and Scott Brown are avid supporters of extreme right wing judicial appointments and both have bragged about it publicly. Watch the short clip up top and then dig deep.