Hamilton, Madison, and Jay

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Monday, November 17, 2008

Who would Obama choose for the high court?

He went on the record in the primaries and the general election with the sort of judges he would want to see on the Supreme Court. He wanted "empathetic" judges; judges that understood what the forgotten populace had to go through daily. In other words, he wanted bleeding-hearts on the high court to institute a sort of social justice. Now this had quite a few people concerned, and that worry wasn't unfounded. The LA Times talks about it today:

Barack Obama's election probably does not herald a new liberal era at the Supreme Court, since none of the conservative justices -- who are in the majority -- is expected to retire in the next four years.

[Stop. The only conservative justice that would even be considered as one to step down would be Associate Justice Scalia because he's over age 68, but Scalia has no intention of stepping down now. I cite this because the Times tries to make it sound like there's more than one conservative justice that could step down when in fact none intend to.]

But if liberals cannot take control, Obama's win has them pushing for a strong voice for social justice on the high court.

"I think Obama would want to make a statement with his Supreme Court justices. We hope for a justice who can replace the lost voice of an Earl Warren or Thurgood Marshall or William Brennan," said Nan Aron, president of the Alliance for Justice, a coalition of public interest and civil rights groups. "It's critically important to have an Obama justice who can be a counterpoint to [Chief Justice John G.] Roberts and [Justice Samuel A.] Alito.

"And many expect the voice to be that of a woman."I think it's a virtual certainty Obama would appoint a woman. It's absurd that the Supreme Court has only one woman, and everyone recognizes it," said Thomas Goldstein, a Washington lawyer who practices before the high court.

Three frequently mentioned candidates are Judges Diane Wood, 58, of the U.S. appeals court in Chicago; Sonia Sotomayor, 54, of the U.S. appeals court in New York; and Elena Kagan, 48, dean of Harvard Law School.

Wood knows Obama from her time teaching at the University of Chicago. Sotomayor could be the first Latino named to the high court. Kagan, who served as a domestic policy advisor to President Clinton, has won high marks from conservatives for bringing intellectual diversity to the liberal-dominated law faculty at Harvard.

Among Democrats, Govs. Janet Napolitano, 50, of Arizona and Jennifer M. Granholm, 49, of Michigan also are being talked about for top legal jobs in an Obama administration, either as U.S. attorney general or as future Supreme Court nominee. Both were federal prosecutors and attorneys general for their states before being elected governor.

It is not clear that Obama hopes to put the kind of person on the court that Aron and other liberals are dreaming about.

In an interview with the Detroit Free Press editorial board in October, he described Warren, Brennan and Marshall as "heroes of mine. . . . But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

Those being eyed by people like Aron aren't surprising. They're the sort of judges that now still cling to the foolish notion that the Constitution is outdated, and that it should be interpreted as a living and breathing document. And Obama may choose jurists like that to secure the liberal wing of the high court, but it really doesn't matter. Why?

Simply put, he will lose more liberals than conservatives. As I said above, Scalia is the only conservative justice over 68. But Scalia is as healthy as a horse, so we don't see him stepping down. Ginsburg (75) and Stevens (88) would be the first two to step down. Ginsburg says she's not going anywhere. The other two -- Justices Souter and Breyer -- are also over age 68, but neither has conveyed any statement that they want to step down. Kennedy, the swing vote on the court, has also not said he's ready to go.

But that doesn't mean things couldn't change. For all we know, a few months down the road, Stevens might decide it's time to go. OK, let's run with that. What happens? Obama nominates a moderately liberal jurist. They'll sail through the Senate Judiciary hearings. And the Senate will give them their due up-or-down vote, and they'll be installed on the high court.

What's changed? Nothing. You still have four liberal jurists, four conservative jurists, and one swing vote. Had McCain won, then we might have seen a much different high court as justices stepped down. It was speculated during the primaries that the next president could have as few as two, and as many as three justices to appoint in his first four years. Scalia still wouldn't leave, and the liberals would be hard pressed to stay on the court in an effort to make sure that a similarly-minded individual replaced them.

There shouldn't be any hand-wringing over this issue right now. If Justices Thomas, Scalia, or Alito keel over from a heart attack, or if something happens to Chief Justice Roberts, then that's the moment we should be concerned because it threaten to tilt the court in the liberal direction. But right now, there shouldn't be any worry should one of the more liberal jurists step down. the balance will be maintained, regardless.

Publius II


Blogger road warrior said...

in all honesty, i don't really care who Obama chooses as long as he chooses a republican for something! He has been saying all along how bipartisan he is, well now it's time to show it! If he just picks another liberal illuminati to sit next to him... we will know what kind of man he is, they lying kind!

November 18, 2008 at 9:05 PM  
Blogger knowitall said...

Anyone who would take the system left. That is his plan, along with the liberal illuminati. Big government.

December 1, 2008 at 1:52 PM  

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