Friday, May 22, 2009

Obama and the Supreme Court

by Norman Markowitz

Justice David Souter is retiring from the Supreme Court and President Obama will soon be choosing a replacement. There is extensive speculation in the media over who his choice will be and reports that the Republican Right is"gearing up" to fight whoever the nominee will be.

The second point can be dispensed with quickly. The Republican right doesn't have the votes in the Senate to block any Obama appointee to the court barring some scandals that would discredit that nominee.

As for the first point, what is most important is that President Obama choose a militant progressive in the tradition of Louis Brandeis, Hugo Black, William O Douglas, and Thurgood Marshall, someone with the intelligence and strength to actively fight against the Supreme Court's present right-wing majority, which will not in itself be changed, since Justice Souter, considered a conservative Republican when George Bush I nominated him to the court, angered the Republican Right by voting with non right-wing Justices on many important issues over the years, including the crucial December 2000 5-4 vote in which five center-right Republicans on the court ended the Florida recount and in effect appointed George W. Bush president of the United States.

It took Franklin Roosevelt five years to get a Supreme Court appointment and the Supreme Court's vetoes of major New Deal legislation and expected veto of social security, unemployment insurance, and the National Labor Relations Act led to the most momentous court reorganization struggle in U.S. history in 1937, a struggle that FDR lost in terms of expanding the number of Justices but eventually won in terms of pressuring centrist conservatives to join progressives in not vetoing New Deal legislation and beginning, in 1938 the appointment of progressives who over time produced the post WWII Supreme Courts which expanded Civil Rights and Civil Liberties protections while sustaining progressive labor and social welfare legislation.

Richard Nixon as President began the assault on a "liberalized judiciary" forty years ago and Ronald Reagan and George Bush I greatly expanded that assault in order to produce our present business friendly people hostile federal judiciary. In his eight years in the White House, Bill Clinton moderated but did not change that judicial balance of forces. Clinton's appointments were usually business friendly centrists or what I and others call weak "process liberals," those much more interested in formal processes than in justice, seeing themselves as "non-ideological" professionals as against Scalia, Thomas, Alito, and the very slick right-wing Chief Justice, Roberts, for whom right-wing ideology has usually been front and center in their decisions and have determined the character of their decisions. At times they were amenable to compromise, especially once Justice Sandra Day O'Connor served as a swing vote on the court, but since her retirement they have rarely compromised.It is interesting to note that most of the decisions seriously challenging the Republican Right in recent years have come from the oldest appointee to the court, John Paul Stevens, an Illinois Republican whom Gerald Ford appointed over thirty years ago. Breyer, very much of a "non ideological" centrist, and Ginsberg, more of a traditional liberal but not a strong one, have certainly not staked out a serious principled opposition to the Roberts court rightwing majority, although they, along with Souter and Stevens, have usually voted against it.

President Obama should follow in the footsteps of Franklin Roosevelt, not Bill Clinton, in this first Supreme Court appointment. He should look for a candidate who will reflect his commitment to "change we can believe in" just as Franklin Roosevelt looked in early appointments to Hugo Black, William O Douglas, Felix Frankfurter and others whom he knew would support New Deal regulatory and social legislation. Unfortunately, Stevens is in all probability the next Justice to retire and that will not change the present 5-4 balance of forces. But Scalia has been on the court for a generation and Thomas for nearly two decades. Obama will, assuming that he wins a second term, be in the position to craft a progressive Supreme Court majority and change by his appointments the federal judiciary as Franklin Roosevelt did. Now is the time for him to begin and for us to call upon him to begin and to support him in that endeavor.