Every time a Supreme Court vacancy comes up, some pundits and politicians like to pretend that the choice of a replacement justice should ideally exist in some ethereal nonpartisan, apolitical land. The discussion in the real world about who that new justice will actually be, however, is always anything but apolitical. And that will be the case as long as Anatole France's hoary description remains true: The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread."
For any rightwing cog in Congress to suggest that the process of selecting appointsment to the courts should be nonpartisan is, frankly, not merely ludicrous but obscene. As the advocacy organization Alliance for Justice pointed out in a report released last week:
...only three Court of Appeals judges, and nine District Court judges, were confirmed in 2009, leaving 101 vacancies unfilled. Not since 1952, President Eisenhower’s first year in office, have so few judges been nominated and confirmed during an administration’s first twelve months. ...
Republicans obstructed nearly every nominee with anonymous holds or threatened filibusters. ...
Senate Democrat[ic] leaders struggled to find floor time on nominations last year, failing to call Republicans filibuster "bluff," and Majority Leader Harry Reid (D-NV), had a difficult time finding the floor time needed to overcome filibuster threats while also addressing health care and economic policy. When Democrats did manage to bring judicial nominees to a floor vote, many sailed out of the Senate with overwhelming bipartisan confirmation numbers. Indeed, five district court nominees who were delayed in the Senate were ultimately confirmed by votes of 96-0, 100-0, 88-0, 97-0, and 99-0.21 Two circuit court nominees facing the same problem were ultimately confirmed by votes of 94-3 and 72-16.22 These voting records reflect the outrageous Republican strategy to filibuster candidates the Republicans ultimately support. Republicans used the confirmation process again and again to stir their base and attempt to discredit President Obama’s agenda and supporters.
With a moderate in the Presidency, a potentially dicey midterm election coming up, pressure from the right and weakness on the left, it will be no surprise to anyone if the justice who replaces Justice J.P. Stevens is not as liberal as he. Indeed, it would almost be a miracle if s/he were.
Sen. Joe Lieberman, who should keep his loose lips forever zipped about Supreme Court nominees after having voted to end the filibuster of Samuel Alito, the right-winger who replaced Sandra O'Connor, said:
This is a fascinating moment, because it may be for all these reasons, and acknowledging the fact that Justice Stevens became the leader of the liberal wing of the Supreme Court, that President Obama may nominate someone, in fact, who makes the court slightly less liberal, at least for a while.
Indeed, the President may do exactly that. On a divided Court, this will mean - during the decades that such a replacement might well serve - still more movement toward the right, a narrower reading of civil liberties, more rights for corporations, and the potential for additional cases with the pernicious impact of Clinton v. Jones, Bush v. Gore, and Citizens United v. Federal Election Commission.
So far, five people are on the White House's short list of nominees. They are 7th circuit Court of Appeals Judge Diane Wood, Solicitor General Elena Kagan (who many see as the odds-on favorite), D.C. Court of Appeals Judge Merrick Garland, Homeland Security Secretary Janet Napolitano, and former Georgia Supreme Court chief justice Leah Ward Sears.
In the eyes of the right, all five so far on the short list are flaming liberals if not outright socialists. They're actually moderates on any reasonably aligned left-right spectrum. The chances of anyone clearly liberal emerging - Geoffrey Stone, Pam Karlin, Kathleen Sullivan, Goodman Liu or someone further to their left - is just about zilch.
According to Tom Goldstein, the Washingtion appellate lawyer who runs the Scotusblog Web site: "The candidates who are truly liberals aren’t really on the table. You can just tell that it’s not where the White House is headed, and the [liberal legal] groups themselves seemingly accept it."
Geoffrey Stone, who as dean of the University of Chicago Law School hired Obama to teach there, said he expects the President will not choose someone liberal enough to serve as "an ideological counterweight to [Chief Justice John] Roberts and Alito."
"I think he’s not inclined to fight that fight," Stone said. Obama "will likely want to appoint someone who ultimately will not be regarded as that controversial."
As the right wing has proved again and again over the past 30 years, it plays hard ball on judicial appointments no matter who is the President. Too many Democrats, on the other hand, like to pretend we really do live in that ethereal nonpartisan land when it comes to the courts.
As the execrable Attorney General and Bush political operative Alberto Gonzales said three-and-a-half years ago:
Few presidential decisions are more important than lifetime appointments to the federal bench. Many of a president’s policies and programs, no matter how popular or worthy, can be undone by the very president or the next Congress. But a judicial appointment lasts a lifetime. Indeed these judicial appointments often represent a president’s most enduring legacy.
The right not only knows this, it operates with this fully in mind. Over the past 30 years, it has built what the Alliance for Justice calls a "farm team," a deep bench of ultra-conservative judges on federal district and appellate courts. It now controls 10 of the 13 courts making up the latter. Those Democrats who act as if this isn't happening, and offer few counterweights in opposition, condemn us all to a world in which the wealthy gain an ever more powerful legal edge over everyone else, where our privacy and other civil liberties are at risk, and where executive power holds the trump cards. A world that Justice Stevens, liberal but certainly not a flaming one, has objected to throughout most of his long career on the Court.