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As you all know, the current Supreme Court is made up of four extreme right-wing nut jobs:

  1. Antonin Scalia,
  1. Clarence Thomas,
  1. Samuel Alito,
  1. and yes, John Roberts

The Court features one swing vote, who, upon watching him in action since Justice O'Connor's retirement, is not much of a swing vote after all:

  1. Anthony Kennedy

Finally, there are four moderate to liberal justices who take turns championing liberal positions on a litany of constitutionally-sanguine issues:

  1. John Paul Stevens
  1. Ruth Bader Ginsburg
  1. Stephen Breyer
  1. Sonia Sotomayor (who may turn out to be more liberal than I thought she would be when she was nominated)

Justice Stevens is clearly the leader of the so-called liberal faction of the Supreme Court. It is imperative not just to us liberals and the Democratic Party base, but to the future of our Country, that a strong-minded intellectual liberal be appointed to replace him. The newest Supreme Court justice will not have the benefit of seniority or Republican Party cache (Justice Stephens was appointed as a Republican) to swing Court moderate votes (and even the occasional conservative vote).

Beyond pure Constitutional considerations, it is imperative that a liberal be appointed to re-energize the understandably demoralized Democratic Party base. After two years of Democratic enabling of the Bush agenda (2007-2009) and another two years of Republican AND conservative Democratic obstructionism in the Senate (2009-Present), the need for a strong liberal nominee to unite the Democratic Party base has never been more real or pressing.

Democratic Party moderates (including many in the White House, e.g. Rahm Emanuel) believe that we need to appoint a moderate to avoid a big confirmation fight and to possibly smooth the passage of regulatory reform, jobs, and even climate change legislation. I can say without a doubt that this is the worst line of logic and the most flawed political calculation I have ever wasted my time evaluating. It has been apparent to political watchers of all stripes that the Republicans in Congress have been intent on sinking any Democratic proposals since before President Obama was sworn in as our 44th President. This includes proposals so moderate and "bi-partisan" that many Republicans would normally agree with them if not told to oppose them for political reasons. Regardless of whom President Obama selects, the Republican Party will attack that candidate as too liberal, too out of touch with the mainstream, or the like.

I have a theory that will allow us to nominate a true liberal, while at the same keeping moderate Democrats and moderate-minded independents in our corner come election time – appoint a liberal legal scholar who just happens to be male, white, and Protestant. While I am all in favor affirmative action (I even defend quotas) and affording advancement opportunities to those historically disadvantaged in our Country, I feel that the Supreme Court has become too much a diversity exhibit, and not an intellectual battlefield.


  1. President Ronald Reagan appointed Antonin Scalia, a conservative jurist who happened to be Catholic, to the bench to sway moderate and conservative-learning Catholic voters over to the Republican Party. President George W. Bush did something similar with Samuel Alito.
  1. President George H.W. Bush appointed Clarence Thomas, a conservative jurist who happened to be African-American, and managed to sway the votes of just enough Democratic Senators (afraid of being labeled as racists) to win a close confirmation battle.
  1. President Barack H. Obama appointed Sonya Sotomayor, a moderate-liberal jurist who happened to be both Hispanic and Catholic, to sway moderate and conservative-leaning Catholic and Hispanic voters over to the Democratic Party.

There are many more examples of cynical political calculation in the selection of nominees for our nation's highest court. Some of those have worked out for liberals (William Brennan-Catholic and Thurgood Marshall-African American), but many have not.

I think appointing a strong liberal male, white, Protestant jurist to the Supreme Court would pay homage to the great liberal Justices of the mid- 20th century, such as Earl Warren, William Douglas, and Hugo Black, while at the same time proving to many skeptical white male voters that the Democratic Party is not "just the party of minorities and women" but a party for all. Many moderate white male voters who would normally vote Democratic are scared away from doing so because they perceive the Democratic Party as spending too much time playing identity politics and not enough time governing and making tough political decisions (such as raising taxes on the wealthy to balance the federal budget or enacting a health insurance public option).

Up next: An evaluation of potential SCOTUS picks and some of my own.

Originally posted to Erik the Liberal on Sun Apr 11, 2010 at 10:33 AM PDT.

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Comment Preferences

  •  Speaking up for the "Who Cares?" faction (0+ / 0-)

    I deeply don't care what color the next Justice is, as long as it is someone who has not merely the skills and wisdom necessary for a Justice, but also the personality and persuasive skills to make a difference. We do need someone who can swing votes among the other members of the court, and anyone who is perceived as being chosen only for some characteristic such as race or religion will start with a disadvantage. I don't just want a liberal voice, I want an effective liberal voice.

  •  Stevens was the one to pull Kennedy over... (0+ / 0-)

    Liberal wing is being replaced, so Kennedy will feel more comfortable with the Conservative Justices.  The Stevens replacement needs to be somebody who can make a play for Kennedy's vote and get it.

    If Kennedy keeps voting with the Conservative Block it won't matter if you had Pam Karlan on the court.  And Scalia and Kennedy will stick around forever(or wait for a Republican President) because "Obama is putting radicals on the Court".  

    Politics is like playing Asteroids - You go far enough to the left and you end up on the right. Or vice-versa.

    by Jonze on Sun Apr 11, 2010 at 10:45:53 AM PDT

  •  Here's What I would Do (3+ / 0-)
    Recommended by:
    Nova Land, OIL GUY, drgonzoo

    A lot of commentators have said that if Obama would choose Merrick Garland, that he would get a decent amount of Republican votes, since he is a moderate who leans left, and can build a consensus.  

    But what I would do is, I would "save" him, in case one of the conservative justices retires in Obama's terms.  Scalia will be 80 in 2016 and Kennedy will be 79 and something could happen to either one of them.  That way, you could swing the court from the right, back to leaning left, and you could get a decent amount of Republican votes for him.

  •  The nominee will be a radical socialist (1+ / 0-)
    Recommended by:

    activist who threatens democracy as we know it. It doesn't matter who the nominee is. Just like health care was going to a radical socialized medicine government take-over no matter how watered down it became.

    So why go through all of that for a milquetoast moderate? If you are going to be accused of nominating a radical Liberal activist anyway, why not go ahead nominate a radical Liberal activist?

    "They are simultaneously screaming: 'They're going to send all the old people to death panels, and it's not going to save any money.'" - Paul Krugman

    by Dopeman on Sun Apr 11, 2010 at 10:53:52 AM PDT

  •  Let's see what Lieberscum thinks... (1+ / 0-)
    Recommended by:

    Sen. Joe Lieberman (I-Conn.), when asked whether Obama should pick a moderate nominee to avoid a down-and-dirty confirmation fight, noted that President George W. Bush picked nominees -- Chief Justice John Roberts and Justice Samuel Alito -- that were not "provocatively conservative."

    Politics is like playing Asteroids - You go far enough to the left and you end up on the right. Or vice-versa.

    by Jonze on Sun Apr 11, 2010 at 11:10:59 AM PDT

  •  Yes, Nominate a True Progressive Now (0+ / 0-)

    But my point is, after 2010, Democrats will most likely have 52-53 senators.  The Republicans will howl and whine about anyone who Obama chooses right now, but his pick will not alter the balance of the Supreme Court.

    However, if Scalia or Kennedy would get ill and retire, you could expect a REAL war over anyone Obama chooses.  My point was, "save" Garland, who is a moderate that leans left, so that enough Republicans will vote not to filibuster him.  This will alter the court towards leaning left.  Plus Garland is someone who tries to build consensus like Stevens did, so he may be able to persuade a few justices.

  •  Forget it. (1+ / 0-)
    Recommended by:

    Obama will not pick a liberal because he does not have the guts to fight for his nominees.  He has just demonstrated, with Dawn Johnson, that he will hang them out to dry if the GOP says mean things about them.  The court is about to head rightward.  Stephens will be sadly missed.

  •  Keith Olbermann is obvious choice (1+ / 0-)
    Recommended by:
    Nova Land

    The most important qualities are:

    A solid understanding of our nation's founders


    A brilliant mind.

    This is a slam-dunk.

    Is it not written "There's a lot goes on we don't get told."? (Lu Tze)

    by MakeChessNotWar on Sun Apr 11, 2010 at 12:24:48 PM PDT

  •  The Constitution (0+ / 0-)

    is threatened by this court. Seriously. If the only thing Obama accomplished for the rest of his term -- and even if he lost re-election -- fighting to the death to get the court back in balance would be the best thing he could do for this country and our progeny. It is a Constitutional emergency. This court is a clear and present danger brought on by ignorance and apathy in the electorate that threatens to dismantle our principles before our eyes. We need liberal legislation and all kinds of reform, but the lifetime trumping power that was intentionally seized by the right, slowly and deceitfully, has to be recognized and stopped. The trend of the court shifting to the right has to stop, because there isn't much distance remaining before we go over the edge.

    Fiction is obliged to stick to possibilities. Truth isn't.
    Mark Twain

    by phaktor on Sun Apr 11, 2010 at 01:42:19 PM PDT

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