In this week's issue of "The New Yorker," Jeffrey Toobin writes a compelling piece about the role of the next president in framing the composition, and ideological bent, of the Supreme Court.
I hope you have the chance to read Mr. Toobin's article in "The Talk of The Town" section of the magazine and, when you do, please consider that I wrote the below piece, which was posted on The Huffington Post, more than a month ago. The similarities between the two pieces are striking.
Serendipity? Clearly, it's not rocket science to stumble upon the fact that the next president will get to make, most likely, two appointments, but the idea that it might become a campaign issue---well, it seems to me that idea wasn't being bandied about.
Frankly, I hope this issue gets as much air time, and press, as possible. Some might think that posting something on the blogosphere doesn't count, but hey--it's out there, and some Web sites are even getting as much traction, dare I say it, as The New Yorker. Guess the idea that some might suggest what Jeffrey Toobin wrote was original, or the he was the first to make this argument, is, frankly, unsettling.
The Best Argument Against McCain
Democratic Party chair Howard Dean was right, in his Saturday morning radio address, when he said that Senator John McCain has no plan to fix our broken economy, and that nothing will change from the Bush years if he were to win election. Dean was right to suggest, too, that the economy is the number one issue, and will be for some time regardless of who becomes president.
But, recession and prosperity are cyclical, they come and go. Appointments to the Supreme Court are for life and, despite what the White House might like us to think, nominating a judge to the highest court in the land isn't like guesting on "Deal or No Deal."
This week's decision by the Supreme Court to end the moratorium on the death penalty by striking down a case that challenged the constitutionality of lethal injection should help bring the demographics of the Court into sharper focus.
And, regardless of who the Democratic presidential nominee is, come November, before casting a vote, think about this:Only two of the nine sitting Supreme Court justices were nominated by a Democratic president, both by Bill Clinton; the remaining seven were nominated by Presidents Ford, Reagan, and Bush. President George H.W. Bush picked Justice Souter who, compared with Alito and Roberts, is a flaming liberal. His son, as you know, nominated Justices Roberts and Alito.
Importantly, all but three of the justices are over 60. Justice John Paul Stevens will turn 88 on Sunday. He was nominated by President Ford; Justice Ruth Bader Ginsburg, a Clinton nominee, is 75. We can expect someone's water to break imminently, and to find another vacancy sooner rather than later.
With their latest decision, we got a sneak preview of the direction in which Chief Justice Roberts, who is a young'un compared with his associates, plans to take the Supreme Court given their 7 to 2 ruling against a challenge to lethal injection.
Justice Roberts argued that there wasn't sufficient proof that executing someone by a three-tiered protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. But, he didn't suggest how one is supposed to obtain that proof---interview someone after he's been executed? And, this is only the tip of the iceberg.
Over the coming years, the Supremes will have the opportunity to hear more challenges, like whether or not D.C. has the right to ban handguns, whether a woman has the right to control her own reproductive destiny, as well as decide on issues from electronic surveillance, retroactive immunity, what constitutes torture to if you must forfeit your right to litigate against an employer for pay discrimination because you didn't file your lawsuit on time.
In your grandchildren's lifetime, the Court will hear cases that deal with crime and punishment, as well as just how far the "unitary executive" can go in claiming privilege.
Be scared, be very scared, and remember that the one who wrote the strongest opinion of all, on Wednesday, against capital punishment, calling it a "pointless and needless extinction of life," Justice Stevens, is the closest to retirement while his conservative colleagues, Justices Alito, Roberts, and Thomas, are young enough to be his children. Indeed, these Bush nominees to the bench are in their infancy.
Remember, too, that over the next 35 years, the Supremes will decide on issues we care about most, as well as those we can't even imagine. So, given that this President has already nominated nearly a third of those sitting on the Court, all lifetime appointments, one shudders to think what his chosen successor will do if given his turn up at bat, given that this executive branch has all but shredded not only the First and Fourth Amendments, but the Eighth Amendment, too.
Odds are, whoever occupies the Oval Office next will get to pick two more Supreme Court justices.
Imagine what this country will be like if six of nine on the bench were appointed by George W. Bush or one whose stated intentions are to follow in Bush's nu-cu-lar footsteps. When we retire a president, in January, the future of the Court, and the country, will be at stake.
If protecting the integrity of the Supreme Court, and the balance of power, by keeping a level ideological playing field, isn't a good enough reason to defeat John McCain then what is?
While it hurts a lot to have to choose between an empty refrigerator and an empty gas tank, the Democratic Party chair is right to highlight meat and potatoes issues, but the ramifications of electing any president with an ideological agenda who has the power to make two more appointments to the Supreme Court will reverberate for generations to come.
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