Will Obama Move Supreme Court Rightward?
By Jeff Cohen
May 20, 2009 - 11:56am ET
I learned long ago, while working at the media watch group FAIR, to be wary of New York Times headlines.
Hearing news that President Obama has a short list of candidates to replace David Souter on the U.S. Supreme Court, I dug up a front-page New York Times Week in Review piece written soon after Obama’s inauguration about his possible impact on the Court. It was headlined: “To Nudge, Shift or Shove the Supreme Court Left.”
I’d like to see Obama shift or shove the Court leftward. But after reading the article, I realized that it could just as easily have been headlined: “Will Obama Move Supreme Court Rightward?”
The centerpiece of the Times article was a fascinating study conducted by two University of Chicago law professors (one of whom is a conservative federal appeals judge) analyzing the judicial records of the 43 justices who’ve served on the Supreme Court since 1937. Four of the five most conservative judges of the last seven decades (Clarence Thomas, Antonin Scalia, John G. Roberts, Samuel Alito) now sit on the Court. With Anthony Kennedy at number ten, five of the ten most right-wing judges are currently on the Court. The current majority, in other words, is almost a conservative all-star team.
By contrast, among the ten most liberal judges since 1937, the only sitting justice is Ruth Bader Ginsburg – she’s number nine. Today’s other three “liberal” justices (John Paul Stevens, Stephen G. Breyer, David H. Souter) are in the top 15, but outside the top ten.
All in all, that’s a right-wing-dominated Supreme Court.
The study gives credence to the claim of Justice John Paul Stevens (age 89) that he hasn’t moved left since being appointed by President Ford in 1975, but that the Court has moved right. And it backs Stevens’ assertion that “every judge who’s been appointed to the Court” since 1971 “has been more conservative than his or her predecessor” – with the exception of Ginsburg (who recently underwent surgery related to pancreatic cancer).
The question facing Obama: Will he continue this trend of shifting the Court rightward?
Unfortunately, from what we’ve seen of Obama’s general penchant for “moderate” appointees who don’t inflame Republicans, it’s quite possible the Court will continue trending rightward – if liberals get replaced with less liberal appointees. After Souter, the seats Obama is most likely to fill are those of the two most liberal justices: Ginsburg and Stevens.
One of the most depressing aspects of the Obama era is how he has gotten away with so many centrist/corporatist appointees with such muted criticism from the left. That better change when it comes to crucial LIFE-LONG judicial appointees.
Whom Obama chooses for these posts is arguably more important than his choices of Vice President Joe Biden or Defense Secretary Robert M. Gates or Secretary of State Hillary Clinton.
On this topic (like others), Obama speaks eloquently. . . out of both sides of his mouth. In revealing comments to the Detroit Free Press last October about his models for Supreme Court picks, Obama praised liberal lions Thurgood Marshall and William Brennan of the Warren Court as “real heroes of mine.” Then he added: “But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”
After noting the Warren Court’s powerful role in taking on racial segregation, Obama added a typically frustrating caveat: “I’m not sure you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. . . So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.”
Obama is a smart guy. He knows that even the most “common-sense/pragmatic” nominee will bring (often-feigned) outrage from conservatives. Right-wing groups are gearing up to raise funds and build their mailing lists by pouncing on whomever he chooses. They’d yell even if he selected 79-year-old recently Republican Arlen Specter.
After Souter announced his retirement, right-wingers jumped on Obama’s sensible statement that he would look for “that quality of empathy, of understanding and identifying with people’s hopes and struggles.” That’s code, claimed conservatives, for a liberal activist judge. And Obama is looking to replace Souter with a woman, person of color or both.
Right-wing theatrics aside, the reality is that unless Obama restrains his compulsion toward centrist consensus and appoints real progressives to replace not only Souter but Ginsburg and Stevens, our right-wing court may get even more conservative.
George W. Bush appointed mostly right-wing ideologues to the federal courts, and put Alito and Roberts on the Supremes. Republican-appointees and rightists now dominate the federal judiciary. Meanwhile, Bill Clinton prided himself on choosing mostly moderate judges – praised by the same elite pundit chorus that now praises Obama’s “pragmatic” choices.
A tepid replacement for Souter (and Stevens and Ginsburg) would maintain a rightwing status quo on the Supreme Court; as University of Chicago law professor Geoffrey Stone told the Times: “The right side is very bold and very conservative. The liberal side is not bold. They are incrementalists. They don’t set the agenda.”
But if Obama were to break his habit and replace retiring liberals with a bold progressive or two, Professor Stone argues it would seriously change things: “A really powerful, articulate, moral, passionate voice on the left would really change the dynamic on the Court. It would pull the other justices who are inclined to be sympathetic to that voice in that direction. It would shift the center of the discussion — about what’s the middle.”
With a Democratic-dominated Senate, President Obama is free to make a bold choice. I’m not holding my breath—especially after seeing this clueless comment from Senate Judiciary chair Patrick Leahy, who’s gone over possible Souter replacements with Obama: “I don’t like to see an ideologue of either the right or the left. I don’t think we’re going to have one.”
Jeff Cohen , who heads the Park Center for Independent Media at Ithaca College, founded FAIR in 1986.
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