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May 01, 2009

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Interestingly, Souter is also the youngest of the SC liberal bloc -- and it still seems likely that Stevens and Ginsburg, the two oldest court members, will retire in the next four years, given their ages. Even Breyer's a year older than Souter -- so it's conceivable that all four liberal justices will be replaced by Obama nominees.

Does this sound feasible -- and if Obama is to have such an impact on future generations of the court, how could the confirmation process play out? It seems there would be a lot of conservative panic, even if all our president was doing was replacing liberal justices with younger liberal justices.

I think it will be interesting to see the "up or down" vote that the GOP said was required when they threatened to nuke the filibuster.

It will also be interesting to see who Obama nominates, which will be pretty conclusive regarding whether he is a moderate.

And it will be interesting to see if Obama nominates someone who is less than mainstream whether he can hold his "Big Tent" together.

I suspect he will nominate someone who is not all that controversial, but it would be fun to see what happens if he chose someone that the Blue Dogs balk at.

I still remember listening to Souter's confirmation hearing on NPR and being stunned by his forthright manner and trenchant answers. The man did not seem to have a dishonest bone in his body. I suppose some of the remembrance is colored by his subsequent record but I recall being absolutely impressed at the time. Compare that to Thomas's confirmation where he had obviously been coached on Souter's answers and parroted them to the committee without an ounce of conviction.

Souter was the ultimate "stealth nominee", even the Republicans had no idea that they were getting a man of integrity, of course they have since made sure not to repeat that mistake.

I suspect he will nominate someone who is not all that controversial
The Republicans just came within a hair's breadth of filibustering the popular two-term governor of conservative Kansas for Secretary of HHS. Their only grounds were her insufficient hostility to abortion (Sebelius is no pro-choice absolutist), despite her having the strong support of Kansas Senator and well-known Christianist Sam Brownback. They're still blocking Dawn Johnsen, for no reason they'll admit to, and Harold Koh, because of an absurd and unsupported allegation that he's secretly plotting to being about the Caliphate.

I am certain that Obama's nominee, however anodyne, will be portrayed as some combination of a communist zealot and raving lunatic 24/7 on Fox News, with the complicity of at least 30 Republican senators. The Republicans won't be satisfied unless Obama names Monica Goodling.



The sad thing is that I find myself hoping that Obama will name not merely a liberal but a young liberal. Consider the following list of nominees and their ages, with their ages when they assumed office:

Stevens, 55 (By Ford)
Scalia, 50 (By Reagan)
Kennedy, 52 (by Reagan)
Souter, 51 (by George H W Bush)
Thomas, 43 (by George H W Bush1)
Ginsberg, 60 (by Clinton)
Breyer, 56 (Clinton)
Roberts, 50 (by George W Bush)
Alito, 56 (by George W Bush)
For all her virtues - and she's reasonably solid, though I'd really prefer the flaming sword of liberal justice - Ginsberg (and to a lesser degree Breyer) was considerably older than the average, and she was hospitalized earlier this year. Ideally, I'd want the most brilliant and responsible person ideologically competent with Obama and the Senate, but craven practicality drives me to more cynical criteria ...

Warren Terra,

Right, but the GOP has lost that capacity: controversial now means that it is controversial to moderate dems. The GOP can't do anything alone, anymore.

Given the lack of spine in the moderates I fear not necessarily a RW appointee but a permanent vacancy. And that would mean that the court would be finally in the hand of the RWs (since iirc 4:4 means that the chief justice casts the deciding vote). Imo any sane candidate would do but I'd prefer a real (law-abiding) liberal. So let's hope that Obama will not 'play it safe' in the vane (vain?) attempt to get any GOP senate vote.

The CJ doesn't get an extra vote in ties. If the vote in the Supreme Court is 4-4, the result below is "affirmed by an equally divided Court" but it doesn't have any precedential effect.

good to know

Also, there is precisely no chance that Obama will intentionally leave the slot vacant - and Souter, who has not been reported to be in ill health, is staying on until his replacement is confirmed.

So the 4/4 court (which would largely be 4-3-1 in any case) will not happen anytime soon.

I Dawn Johnsen and Harold Koh would be excellent picks for the new SCOTUS justice.

But whoever he nominates, it needs to nominate a fire breathing liberal. Bernie Sanders?

Bernard "Bernie" Sanders (born September 8, 1941)
I think that means No Bernie.

In general, while I don't think that justices need to be former judges, or even that it's necessarily desirable that they all be former judges, I'd really like the to be legal scholars (federal judge, law professor, trial lawyer who's handled major constitutional law cases, that sort of thing). Obviously politicians can be great justices (Earl Warren), but I'm not sure you could say there was evidence beforehand that he was qualified, and appointing a politician might give the already incredibly powerful clerks too much influence.

Bernie doesn't even have a law degree.

"But whoever he nominates, it needs to nominate a fire breathing liberal. Bernie Sanders?

Bernie doesn't even have a law degree."

C'mon Warren, where's your sense of fun? :)

I am certain that Obama's nominee, however anodyne, will be portrayed as some combination of a communist zealot and raving lunatic 24/7 on Fox News, with the complicity of at least 30 Republican senators. The Republicans won't be satisfied unless Obama names Monica Goodling.

That’s kind of funny seeing that Democrats are responsible for the word “Borked” being added to the dictionary.

But for the record, I believe Obama should have his nominee quickly confirmed provided s/he is not a card carrying communist or a child molester.

The interesting thing about Point's comment is that, if Obama does replace all the older liberal justices with younger liberal justices, the court as a whole is going to be pretty fresh. Absent some surprising retirements, the next few presidents after Obama might not get a chance to nominate any SC justices at all.

"But for the record, I believe Obama should have his nominee quickly confirmed provided s/he is not a card carrying communist or a child molester."

I agree, there should be no filibuster. The Senate has an obligation to actually give a President an up/down vote on his nominees, no matter how outrageous they might be.

Replacing Souter won't shift any decisions in the short term, but it will substantially reduce the chances of moving the Court rightward in a subsequent administration.

But, please, let's at least have somebody who believes in the entire Bill of Rights. Obama claims to support the 2nd amendment, time for him to prove he wasn't lying.

Oh, and seeing as Specter is on the Judiciary Committee there should be some entertainment value here. Will he go all Mavericky on his new caucus?

But yeah, the wailing has begun already:

[I]n coming years, Souter’s replacement may well provide the fifth vote for:

— the imposition of a federal constitutional right to same-sex marriage;
— stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;
— the continued abolition of the death penalty on the installment plan;
— selectively importing into the Court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites;
— further judicial micromanagement of the government’s war powers; and
— the invention of a constitutional right to human cloning.

“invention of a constitutional right to human cloning”

Wow.

We're royally screwed. Given the chance to replace four liberal justices, Obama's picks will include at least one non-liberal.

Ebonmuse

Actually, Kennedy and Scalia are both in their 70's, so even if Obama doesn't get a chance to replace them, his successor likely will.

Unless... the Republicans don't see the white house until 2021, in which case Scalia, at least, will try to hold on (and even then, he may stick around).

So, actually, we could easily be looking at a decade of a stable court, like what we had 1994-2005 (or 1812-1823).

In other words, good point.

Thomas, 43 (by George H W Bush1)

The biggest middle finger to the integrity and credibility of the justice system since Roosevelt's court-packing, and until the 'get your judgeship here' mob lawyer mentality took over the OLC to authorize torture.

I will never forgive Joe Biden and the other Dems who let it happen.

Given the chance to replace four liberal justices, Obama's picks will include at least one non-liberal.

and you base this on ... ?

Nell,

I'm not sure Obama what your fear exactly is -- Obama, if given the chance to replace all four liberal justices, will use a combination of judicial minimalism and moderation (like Breyer) and more empathic jurisprudence (like what was found at the Warren court).

In other words, the ideological make-up of the court, assuming Obama gets leeway in choosing the justices, shouldn't change much, and if at all would probably be to the left.

Am I mistaken here? Is there a fear that the confirmation processes, shoved together, would make appointing four liberals to the court difficult?

"We're royally screwed. Given the chance to replace four liberal justices, Obama's picks will include at least one non-liberal."

Considering that Souter was a Republican pick, the same could be said of the next Republican President. Supreme court nominee quality control isn't all that reliable on either side.

"Souter was the ultimate 'stealth nominee', even the Republicans had no idea that they were getting a man of integrity . . ."

Don't you just hate it when that happens.

Specter’s switch actually bad for Dems here (via Insty)?

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

I did not know that…

the biggest fear i have is that i won't be able to listen to six weeks of wingnuts boilerplate screaming over the nominee without dying from hyperventilation due to constant exasperated sighing.

"${NOMINEE} is the most liberal, socialistic, activist nominee this country has ever seen!"

Souter's stealth nature was somewhat exaggerated, underlined by his support from liberal Republican Warren Rudman.

I am supportive of his overall ideology but also have respected/liked him as a person overall. Nice mix there.

BTW, Stevens once noted Souter was the justice he most trusted on the Court, so Stevens surely will miss him too.

@OCS: If that's a real concern (and I have my doubts that a divided Republican caucus would really want to filibuster a reasonable nominee from a popular president), then I imagine we could get Sen. Snowe to be that person.

Nell: Snowe is not on the Senate Judiciary Committee… This Senate rule says that one member of the minority has to consent to break the equivalent of a filibuster within the committee. So a nominee might not get past the committee without the consent of at least one member of the minority – and that would have been Specter.

@cleek and Point: Call it a hunch based on the fact that Obama has no advisers to his left. And on some disturbingly pro-executive-power views of Kagan's, e.g. Cass Sunstein, Mr. "prosecutions for torture would be criminalizing policy differences" is almost certain to get one of the slots that open up.

I just find it unimaginable that out of four opportunities, Obama would actually nominate four thoroughgoing liberals. Given that the right wing of the court is hard-line right wing, and the likelihood that at least one of Obama's picks will be a "centrist" (center-right), the center of gravity of the Court will move rightward from today's Court.

It's proved hard to predict some of the trajectories of mushy middle nominees, though, so we could get lucky. But my point is that we'd have to get lucky; Obama's not going to pick four Ruth Ginsbergs.

— stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;

Oh noes, the Future Liberal Court might destroy this robust, 55-year-old tradition!

Nell,

"Call it a hunch based on the fact that Obama has no advisers to his left."

If this is relevant, then none of the justices are likely to be to far tp Obama's left. Does that mean they won't be liberal?

"Given... the likelihood that at least one of Obama's picks will be a "centrist" (center-right)..."

"Obama's not going to pick four Ruth Ginsbergs"

Even if Obama "has no advisors to his left", how would an Obama "centrist" be likely to be "center-right"?

For that matter what is center-right, for you, and how is it likely to manifest in an Obama nominee? (Aside from your example, of opposition to the prosecution of torture.*)

Are any of the current liberal justices centrists? How are they significantly to the right of Ginsburg? Or is your fear that Obama will pick someone like Anthony Kennedy?

* Hell, I consider myself a liberal, and I'm a little nervous about the idea.

[I]n coming years, Souter’s replacement may well provide the fifth vote for:

Huh? There's four votes for all these things now? And doesn't that presume that Souter is one of the four, which means that Souter's replacement would only be the fourth vote? Whelan needs help with his math.

— the imposition of a federal constitutional right to same-sex marriage;

I love that phrasing, the "imposition" of a right. Plus, if the states can't discriminate against people on account of their gender then the sky will fall.


— stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;

The Pledge of Allegience smacks of paying tribute to the fatherland, so I'd be in favor of doing away with it altogether. Plus, "under God" wasn't even originally part of the pledge.

— the continued abolition of the death penalty on the installment plan;

Cause if we can't get on with the killing and the vengence then, well, I don't know what.

— selectively importing into the Court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites;

This is just stupid, nutty, wingnut echo chamber crap, as if just because some Justice cites international norms or law as collateral support for a position in an opinion then we're going to get "Europe leftist elite" policies, whatever the hell they are (and what if that's a good thing?)

— further judicial micromanagement of the government’s war powers; and

The judiciary isn't part of the government? Strange. Plus maybe if the executive branch wasn't disappearing people to secret prisons, setting up an American gulag, holding US citizens without charges, and claiming that the whole things was unreviewable by the courts, the courts wouldn't have much to say (or at least a lot less).

— the invention of a constitutional right to human cloning.

That's a new one. I assume this is some stupid meme that bubbled up on the wingnut websites somewhere.

Obama's not going to pick four Ruth Ginsbergs.

Where would Obama find four more principled Constitutional scholars with experience on the bench?

Assuming as we must that plucking from the obscurity of statewide office enforcing the law or governing, a la Warren, is out of bounds.

I'd like to use this to mark my long standing objection to the state of affairs where picking Supreme Court Justices is one of the very most important (if not the most important) thing that Presidents do.

I hate that we are at a situation where someone like Balkin can say with a straight face:

For Ackerman, We the People must self-consciously understand that the Constitution is being amended outside Article V and give their consent through a series of key elections. In Levinson’s and my model the people don’t have to have this self-conscious understanding. Elections matter, but primarily because they decide who becomes President and who holds the balance of power in the Senate, thus affecting who gets appointed to the courts

Ugh just ugh. I'm not sure that he is descriptively wrong, but if he is descriptivley right he is describing a bad state of affairs.

/only mildly related rant, sorry

"completely secularizing the public square"

Let them try!!

They can have my chocolate easter bunny when they tear it from my cold, dead hands!!

Is it O.K. to call a Supreme Court Justice "sweet"?

Warren Terra, above:

"I am certain that Obama's nominee, however anodyne, will be portrayed as some combination of a communist zealot and raving lunatic 24/7/on FOX news."

That would be mild.

Steve Benen points us to a "Twitter" by Erick Erickson, proprietor of the Redstate, summing up David Souter, moderate Republican:

key words --- "goat-fnking child molestor."

The way things are going, the unhealed bloody stump of what's left of the Republican Party is going to leave themselves two pure choices:

Retirement to a monastary/funny farm ....
or outright secession and bloody revolution.

I hope it's the latter --- I'm joining the Union Army Air Force and learn indiscriminate strafing and carpet bombing.



@ joe 944am
Souter's stealth nature was somewhat exaggerated, underlined by his support from liberal Republican Warren Rudman.

[emphasis added]

Huh? Its true that Rudman would be read out of the current GOP for having common sense and believing in stuff like, you know, science and integrity etc.

But "liberal"?

Not if you were around then. In Massachusetts, Vermont and the then-rare Democratic precincts in NH, Rudman was considered (and really was, if you heard him) a down-the-line Goldwater/Reagan nutter, but a nutter with integrity. The fact that his party has moved far to the right of where it and he used to be doesn't make him liberal, not in my book.

When I spoke of permanent vacancy I did not mean that Obama would not nominate someone but that there would be a longterm filibuster made possible by Dem spinelessness, blue dog defections and GOP ruthlessness. Don't bet on the MSM telling anyone what the GOP said about those tactics while in power.

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