Courting Success


In the lingering glow of the big win, I suddenly remembered something wonderful – Obama may have a chance to name somebody to the U.S. Supreme Court. No more new justices – at least for four years – who deny judicial precedent when it suits their conservative ideology; hardly a trademark of “strict constructionists” and judicial restraint. The admittedly liberal Center for American Progress offered a 2007 assessment of Roberts and Alito that gets at the heart of this. And law professor Jonathan Turley pointed out earlier this year that the selling of Roberts as a centrist was as fine a political snow job as any ever foisted on the American public (my words, not his, though he does note that in Roberts’ s case, “centrist” seems to mean falling somewhere in the middle of the Tweedledee and TweedleDumb of American conservative jurisprudence, Scalia and

Ooh-wee kids, pretty scary...

Ooh-wee kids, pretty scary...


It’s not news that the Roberts Court is neatly split 4-4, with Kennedy often providing the swing vote. It’s been one of the most polarized courts in recent memory. The good news is, one of the liberal stalwarts, 88-year-old John Paul Stevens (another Chicagoan!), can now retire with a clear conscience if he so desires. He won’t have to worry about any more stealth candidates being pushed across by Republicans. And if something should happen to the 70-plus liberal justices, we’re covered. The bad news is, the Court’s “Four Horsemen” (Turley’s phrase) of conservatism are collectively the youngest members of the crew. Only Scalia is over 70. So, that means the chances of Obama getting to reset the ideological balance are slim, unless he gets a second term.

All mere speculation of course, as is what kind of justices President Obama would name. But I think his background in Constitutional law and his temperment mean they might not be as radical as some conservatives might fear. Will they support abortion rights? I think that’s a given. Will they reject strict constructionism. Oh, yeah. Obama has been very clear that he favors the “living document” approach to interpreting the Constitution. “How could it be otherwise?” he writes in The Audacity of Hope. How else do you interpret the First Amendment in the context of something the Founders never could have imagined: the Internet?  And as Obama points out – and as I know from reading some of the debates from the Constitutional Convention – the Founders were not some monolith of political and legal thought. How do you decipher “original intent” when the intents were varied and competing?

Look for Obama to pick justices,  if he has the chance,  who share those views, and his intelligence. Legal minds who see nuances in debates, as he does. And justices who, as he said this fall, use “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works and the depth and breadth of one’s empathy” when reaching their final decisions on a case. Trite but true – it’s the Supreme Court that could shape much of what this country looks in the years to come, as it always has. To name but the three most obvious decisions that affected African Americans: Dred Scott, Plessey v. Ferguson,  and Brown v. Board of Ed. For four years at least, I’m glad Obama will be the one calling the shots on the appointees.

~ by mburgan on November 10, 2008.

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