As Specter Moves to the Left, So Does the Supreme Court

The announcement by Pennsylvania Republican Senator Arlen Specter that he was changing his party affiliation from Republican to Democrat has stimulated intense energetic debate over how it happened, why it happened, and what will be the consequences.

But perhaps the most significant long-term consequence of this action may well be the new dynamic that the Specter switch could create for President Obama's ultimate Supreme Court appointments -- and everyone understands that the appointment of two or more Supreme Court justices during one Administration can have greater, and far longer-lasting, impact than most of all the other legislative initiatives and programs enacted during that administration's term in office. And so far, we have actually heard very little commentary on this perhaps most significant impact of all of the consequences of the Specter switch.

I will address this specific consequence in this essay, but let's first provide some additional overview to this event. The first observation that strikes me is the irony of the switch itself. Usually, as in the recent case of Jim Jeffords who switched from being a Republican to an Independent who would caucus with the Democrats, this usually happens when the Senator who is switching parties is doing so to provide more power to the opposition Party in the Congress, not to buttress the President's power -- so that's a bit ironic. Richard Shelby of Alabama is another example of the more usual course.

And yes, some of Specter's motivation has to be based on principle, despite the argument of his critics that the decision was entirely based on political self-interest. Not entirely. If Specter didn't actually feel more comfortable on principle with much of the philosophy of government of the Obama administration, he wouldn't be able to switch over and expect to have the support of the administration in his re-election effort or expect to be given substantive committee and leadership power within his new party in the Senate. He wouldn't have been able to survive being alienated by both sides, and he certainly wouldn't be expecting to run and win re-election next year in that kind of environment.

But certainly, the current polls showing Specter not being able to get out of the Republican primary were definitely a significant factor in his decision. And let's remember, not only will he now have President Obama coming into Pennsylvania to campaign for him, but he'll also have Joe Biden coming in with his strong ties in the State, and he'll also have Hillary Clinton coming in, and she won the State in the primary campaign. And we also must mention the fact that Pennsylvania's changing demographics and changing political dynamic with Obama already having driven most moderate Republicans over to the Democrats clearly laid out a road map to victory for Specter next year, and that road map did not recommend any stopovers at Republican rest stops.

So as is usually the case, the extreme critics on both sides miss the mark entirely, while an objective review of the facts tends to include a little of the commentary from both sides. Arlen Specter clearly understands the politics, and he knows this move does help him immensely on the political front. But Arlen Specter is also a man of principle, and he has demonstrated that in his almost thirty years in the Senate, and he could not have just abandoned that entirely purely for political gain. But the bottom line is that the administration now has the possibility of enacting its full court agenda for health care reform, education reform, environmental and energy reform, economic reform and recovery, and generally expanding the role of government as a "pro-active" agent for change in the country. And with the likelihood of Al Franken being certified as the new Senator from Minnesota, Specter's 60th vote now gives the administration that potential. It is enormous. And any Republican or conservative who denies that is simply in denial.

But while the conversation has not yet focused much on the Supreme Court, any historian can tell you that having a 60-vote filibuster-proof Senate for the President changes the dynamic entirely for the President's Supreme Court nominee selections, and it changes it in his favor. And remember, even with the threat of filibuster and a very divided Senate, any President who can make two or more appointments to the Supreme Court during his term in office will impact the direction of the country in the most significant way for at least a generation or more after that President leaves office.

But if that President has 60 votes on his or her side in the Senate, then the Supreme Court selection process reaches an entirely new level of opportunity for that President -- and again, the impact of Specter's 60th vote for the Obama administration in this regard is enormous.

First, it is possible that even if President Obama serves only one term, and it is almost a certainty that if he serves two terms, this President will have two Supreme Court selections to make, and they most likely would be appointments to replace Justices Ginsberg and Stevens, two of the more liberal members of the Court, with Stevens being the most liberal Justice on the Court.

It has always been my assertion that given the current make up of Congress, and given Obama's natural inclination to work for consensus if possible and minimize confrontation, he would likely name Justices more along the philosophical lines of Justices Kennedy and Souter, Justices considered to be moderate centrists, although Kennedy has often times proved to be more conservative than moderate, and David Souter has almost consistently proven himself to be more liberal than moderate (to the chagrin of the first President Bush). But it is in the mold of these two Justices that I had projected appointments by Barack Obama to be framed.

But now, with the likelihood of a filibuster proof Senate, and with the enhanced leverage the more liberal wing of the Democratic Party could now have on the selection process, I believe that President Obama may be more comfortable with making court appointments more philosophically framed in the mold of Justices Ginsberg and Stevens themselves, the very Justices the President would likely be replacing, and that, my friends, changes everything -- from abortion to civil rights to gay marriage to affirmative action to environmental issues to the role of religion to individual rights to national security to the prerogatives of the Chief Executive.

It changes everything!

And perhaps more than in any other area, the Specter switch to the Democrats now gives this President the chance to really implement his agenda, the agenda he was confident and comfortable with promoting before the September 15, 2008 weekend economic crisis changed the campaign and the country -- and probably elected him as well. If this scenario regarding the Supreme Court comes to pass, let no one ever forget how the Arlen Specter decision will have contributed to that scenario.

I opened this essay by mentioning one of the ironies of this evolving event -- let me close with another one. In commenting on the Arlen Specter switch to the Democrats, Republican Party Chairman Michael Steele accused Specter of "flipping the bird at Republicans." Isn't it ironic that we have come to a time in America where one African-American male may lead his party to the very top, and another African-American male may lead his party to the very bottom!

Carl Jeffers is a Los Angeles-and Seattle based columnist, TV political analyst, radio talk show host and commentator, and a national lecturer. To contact, e-mail [e-mail].

Comments

[Tundrapat]

Someone correct me if I'm wrong; haven't justices been appointed before whilst Congress is not in session? Or is that tactic only possible with Federal court (non-SCOTUS) justices?

Anyhow, another item worth noting on the 'appointment of centrists vs. appointment of liberals'; once a justice gets a life membership to the Supreme Court, history shows that they tend to 'lean left' from their original position. Not always, not to the same degree, but the knowledge that their job will be affecting US law in perpetuity seems to lead to a broader examination and a 'leftier' positioning.

[bobilore]

THE SENATE IS NOT FILIBUSTER PROOF!!!!!!! It's still the same 100 people and guys like Specter, Leiberman, Nelson, et al, can wear any label they want. It's how people vote that counts. It's good that Specter switched but we still need more progressive thinkers in the Senate to REALLY get the CHANGES WE WANT from our government. The election in 2010 will be vitally important. Remember how the midterm elections went after Bill Clinton first got elected? Newt GingriNch and the Contract ON America is what we got. For Obama's election to not be more than a blip on the screen we need to expand on This Revolution by electing more progressive's at every opportunity. 2010!!!!!

[mtrav]

Great insight. You always give so much thought to your observations. Hope it works this way. I don't trust Specter, he fought hard for Clarence Thomas, on what principle was that?

[marignymitch]

Obama doesn't have a veto-proof majority in the Senate. Sixty 'Democrats' in the Senate is no guarantee of cloture. I think Obama can count only on 45 votes, far short of those needed. I expect the authoritarian state justices to hang in as long as they can.

[Skorpyos]

So basically, the author is saying with a 60 Senate majority, Obama will select judges that will be identical to the ones leaving, therefore keeping the Supreme Court identical to before. I don't see how that is moving the JC to the left. If at all, we're lucky Specter switched, otherwise Obama would select more centrist judges (according to this article) that could go either way.

[TJCole]

Unfortunately, it appears none of The Federalist Society members, the majority of what was once our Court, seem likely to retire while this President is in office.....and even so with some of his more draconian authoritarian positions in regard to the rule of law and the legal rights of the individual, this president is more Clarance Thomas then Dr. King....as is record...to date...

[UofAZGrad]

No one can predict anything along these lines. Sandra Day O'Connor only retired because her husband got sick and she wanted to care for him. Thurgood Marshall was adamant that a republican not select his replacement but he died waiting for a democrat to get elected. I wish no ill will to conservative justices and their families, I am just pointing out that (as repubs like to say about everything), no one can predict what will happen in the next 4 to 8 years. One scenario we can root for with a clear conscience is Scalia flipping his own bird by retiring. Rumor has it he was extremely pissed about being passed over for chief justice and he is not thrilled at the prospect of having his influence extend only to a semi-awake Clarence Thomas for the rest of his career on the bench. I think the odds of this are slim and probably depend on Kennedy departing (which guarantees Scalia will be in the dissent on practically every controversial issue for a decade). But, it something to hope for that doesn't require death or tragedy unlike our compassionate conservative opponents like Pat Robertson who openly pray for heart attacks when republicans occupy the presidency.

[reversed]

Umm... According to Wikipedia, Marshall died four days after Clinton's inauguration and retired about a year and a half before that during the H W Bush administration in June of 1991. You make it sound like he died in office during a Republican administration.