Will Obama Move Supreme Court Rightward?

I learned long ago, while working at the media watch group FAIR, to be wary of New York Times headlines.

Hearing news that President Obama has a shortlist of candidates to replace David Souter on the U.S. Supreme Court, I dug up a front-page New York Times Week in Review piece written soon after Obama's inauguration about his possible impact on the Court. It was headlined: "To Nudge, Shift or Shove the Supreme Court Left."

I'd like to see Obama shift or shove the Court leftward. But after reading the article, I realized that it could just as easily have been headlined: "Will Obama Move Supreme Court Rightward?"

The centerpiece of the Times article was a fascinating study conducted by two University of Chicago law professors (one of whom is a conservative federal appeals judge) analyzing the judicial records of the 43 justices who've served on the Supreme Court since 1937. Four of the five most conservative judges of the last seven decades (Thomas, Scalia, Roberts, Alito) now sit on the Court. With Anthony Kennedy at number ten, five of the ten most right-wing judges are currently on the Court. The current majority, in other words, is almost a conservative all-star team.

By contrast, among the ten most liberal judges since 1937, the only sitting justice is Ruth Bader Ginsburg - she's number nine. Today's other three "liberal" justices (Stevens, Breyer, Souter) are in the top 15, but outside the top ten.

All in all, that's a right-wing-dominated Supreme Court.

The study gives credence to the claim of Justice John Paul Stevens (age 89) that he hasn't moved left since being appointed by President Ford in 1975, but that the Court has moved right. And it backs Stevens' assertion that "every judge who's been appointed to the Court" since 1971 "has been more conservative than his or her predecessor" - with the exception of Ginsburg (who recently underwent surgery related to pancreatic cancer).

The question facing Obama: Will he continue this trend of shifting the Court rightward?

Unfortunately, from what we've seen of Obama's general penchant for "moderate" appointees who don't inflame Republicans, it's quite possible the Court will continue trending rightward - if liberals get replaced with less liberal appointees. After Souter, the seats Obama is most likely to fill are those of the two most liberal justices: Ginsburg and Stevens.

One of the most depressing aspects of the Obama era is how he has gotten away with so many centrist/corporatist appointees with such muted criticism from the left. That better change when it comes to crucial life-long judicial appointees.

Whom Obama chooses for these posts is arguably more important than his choices of Biden or Gates or Hillary Clinton.

On this topic (like others), Obama speaks eloquently. . . out of both sides of his mouth. In revealing comments to the Detroit Free Press last October about his models for Supreme Court picks, Obama praised liberal lions Thurgood Marshall and William Brennan of the Warren Court as "real heroes of mine." Then he added: "But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

After noting the Warren Court's powerful role in taking on racial segregation, Obama added a typically frustrating caveat: "I'm not sure you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. . . So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology."

Obama is a smart guy. He knows that even the most "common-sense/pragmatic" nominee will bring (often-feigned) outrage from conservatives. Right-wing groups are gearing up to raise funds and build their mailing lists by pouncing on whomever he chooses. They'd yell even if he selected 79-year-old recently Republican Arlen Specter.

After Souter announced his retirement, right-wingers jumped on Obama's sensible statement that he would look for "that quality of empathy, of understanding and identifying with people's hopes and struggles." That's code, claimed conservatives, for a liberal activist judge. And Obama is looking to replace Souter with a woman, person of color or both.

Right-wing theatrics aside, the reality is that unless Obama restrains his compulsion toward centrist consensus and appoints real progressives to replace not only Souter but Ginsburg and Stevens, our right-wing court may get even more conservative.

George W. Bush appointed mostly right-wing ideologues to the federal courts, and put Alito and Roberts on the Supremes. Republican-appointees and rightists now dominate the federal judiciary. Meanwhile, Bill Clinton prided himself on choosing mostly moderate judges - praised by the same elite pundit chorus that now praises Obama's "pragmatic" choices.

A tepid replacement for Souter (and Stevens and Ginsburg) would maintain a right-wing status quo on the Supreme Court; as University of Chicago law professor Geoffrey Stone told the Times: "The right side is very bold and very conservative. The liberal side is not bold. They are incrementalists. They don't set the agenda."

But if Obama were to break his habit and replace retiring liberals with a bold progressive or two, Professor Stone argues it would seriously change things: "A really powerful, articulate, moral, passionate voice on the left would really change the dynamic on the Court. It would pull the other justices who are inclined to be sympathetic to that voice in that direction. It would shift the center of the discussion -- about what's the middle."

With a Democratic-dominated Senate, President Obama is free to make a bold choice. I'm not holding my breath.

Especially after seeing this clueless comment from Senate Judiciary chair Pat Leahy, who's gone over possible Souter replacements with Obama: "I don't like to see an ideologue of either the right or the left. I don't think we're going to have one."

Jeff Cohen, who heads the Park Center for Independent Media at Ithaca College, founded FAIR in 1986.

Comments

[robbep]

Obama is not a liberal, what is it going to take for the left to figure this out? He has backtracked and compromised on every issue. I predict he will keep Gitmo open and he is going to let the health care industry and republicans frame his health care reform. He is not going to change dadt and his supreme court nominee will be center to center right, almost forgot, he is going to double cross the unions also. He has spent billions of dollars assisting wall street and he has forced GM and Chrysler to file for bankruptcy and he has done this knowing that thousands of working class people will lose their jobs in the process. We as liberals are going to have to make some tough choices in 2010 and 2012. Do we keep voting for democrats who vote like republicans or do we find real progressives and get them elected. If my predictions about Obama's decisions come true how can liberals vote for Obama's reelection in good conscience? Voting for the lesser of two evils will never give us the change we want.

[tbone99]

As long as lobbyists and special interests groups do the real election financing we have very little ability to get our message into the MSM. And even with money - they just refuse anything that threatens their standing.

[LMPE]

I heard so much from the right wing about "activist judges". What does the right wing call Scalia?

Same would be true if Obama appointed a moderate.

[research]

This is my litmus test for Obama.

Supreme court appointee effect us for decades.

Appoint a conservative,

And I will campaign and contribute to Kucinich.

[igotthis]

You folks must help me out. I just don’t see the legitimacy of suggesting that President Obama is a centrist. To me, the man is more complex than this. Isn’t a centrist politician someone who wants to pursue incremental change on light weight policy ideas because he or she doesn’t believe big policy ideas can be pursued successfully or swiftly? Are President Obama’s policies and actions truly indicative of a politician who is a centrist?

No! Consequently, I am not worried about him appointing a centrist Supreme Court justice because the president seems more likely to place on this country’s most important court someone who shares his affinity for big ideas and progress. Therefore, the nominee will be contemplative like he is; the nominee will be suspicious of ideological reasoning like he is; the nominee will see the Constitution as a living document that protects especially the powerless from the powerful like he does; as well the nominee will possess the capacity to communicate with justices who hold diametrically opposite positions than his or her own, like President Obama can. Moreover, the president is not about to kill his big policy ideas by appointing someone who will enable the Court’s rightward leaning justices to declare his policies as unconstitutional.

It is best to describe the president as a progressive leaning pragmatist. Describing him as or suggesting that he is a centrist is too simple; he is way more complex than that. Am I right?

[Bonobo]

No. Pursuing incremental change is exactly what we see him doing, or worse. The bank bailout is a prime example of protecting the powerful from the powerless. His attempts to hide the torture and other abuses of the Bush era are exactly what Japan has been condemned for doing with their history textbooks. Appointing Clinton as Secretary of State, when he explicitly criticized her foreign policy positions, and then adopting many of them, is the sort of thing we fear he will do with the Supreme Court.
Centrism is less a matter of goals than an operational philosophy. Obama may very well want to do good in the world, but his stubborn adherence to a flawed process will doom his dreams in much the same way as Bush failed in Iraq.

[igotthis]

Thank you, Bonobo, for responding, so let’s get it on. Now, although you made strong statements, you expressed rather weak and unclear arguments. So let me try to make clear your three major arguments. Tell me if I’m in error.
Argument #1- President Obama is a centrist because he is incrementally pursing change. Proof: None.
Argument #2- President Obama is a centrist because he refuses to investigate President Bush and his administration for war crimes. Proof: a belief that he is unwisely covering up the Bush administration’s war crimes.
Argument #3- the president is a centrist because he has filled his cabinet with centrists. Proof: A. Hillary Clinton appointed as Secretary of State. B. he adopted her centrist foreign policy positions.
Conclusion: President Obama’s stubborn insistence on using centrist tactics and policies will lead him to appoint a centrist to the Supreme Court.

Did I get it right?

[JimR]

Why are progressives so afraid of centrists? Most of America is somewhere in the center. Deal with it.

[ChristopherLib]

Why are progressive so affraid to call themselves liberal? I don't want Obama to pick a progressive justice, I want him to pick a liberal who unashamedly knows that the constitutions is a living breathing document, with context that has to change as the times do; and that has empathy for the disadvantaged and the disheartened and factors that along with an updated constitutional interpretation to make sound rulings.

If right wingers want to call such a just activist fine. They'll call whoever he picks just that. Never mind that the activist on the court are the right wingers. They consistantly wrongly use the constitution to try to turn back civil rights and womens rights and privacy rights, and workers rights and so on. That's activism. How Democrats allow the right wing to keep calling the reasonable justices on the court activists when the opposite is so clear I just can't understand.

[Bonobo]

Assumes that simply because there is a left and a right, that there is a center. The semantic shortcut has created a false paradigm. In reality, most people simply aren't issue wonks. They have some generalized feelings about what they want done (often inconsistently, e.g., they want services but not taxes), but really just want someone who looks like they know what they're doing. When Democrats preemptively cave on issues ("pragmatism"), they look weak and wishy-washy, and they only win when Republicans have failed badly, but think it's because concession is a brilliant political strategy.

[tbone99]

Obama argued to keep Bush's missing then found, emails secret.. He supported FISA. He has Goldman Sachs running the Treasury, Military tribunals are still on the table at Gitmo. And evidently torture is acceptable.

You really think he might appoint a liberal justice.?

Da Nile is deep and wide

[cliffstep]

I'm not scared by the word centrist. Pick someone who actually respects the constitution , and good will come. The Rs will scream no matter whom he picks , and their corporate masters own the biggest megaphones. It's going to be nasty out there.
Here's a good word: eight.
Pick the right person and stick with her/him until there is a floor vote. If the Rs hold it up , don't buckle. The republic will not fall with eight on the bench , but the Rs will contract more in the public eye by refusing a vote.

[Rog49Thomas]

It's unwise to confuse reform with revolution.

[mitsie]

I don't think you are being fair to the President. You haven't got all the information he has to make his decisions. He has given me hope, something that no other President has done since President Kennedy. There is no price that can be placed on this.

[Bonobo]

Pandora gave us hope, too. Among other things.

[tbone99]

Lets put it out there - Obama is not trying to "be bipartisian "

he's as rightwing as Bush , but more articulate in his spin.

[JimR]

That's the dumbest thing I've read all day.

[naschkatze]

Thank you, Jeff. I am concerned about this too and get piled upon whenever I comment. We cannot afford Obama naming a "centrist".

[JimR]

We cannot afford an extremist, from either the right or the left.

[greginwva]

He voted against Alito and Roberts.Its beyond silly to think Obama wont appoint a liberal leaning jurist to the court.It would be nice if more liberal members stepped down so he can appoint younger liberals to the court like Bush did with his wingnuts.If givin 8 years ,it seems reasonable to expect an opportunity to replace at least one of the right wingers too.It would be nice to have 5 forty something or early 50s Obama appointees.

[NHBill]

Obama is the most liberal President since FDR. He is going to be as liberal as he can, still get reelected and keep the Democratic Party in power. The lesson of the Clinton years is do not over reach. With that said Obama, a Constitutional scholar and Harvard Law Review president, is perhaps the most qualified President to appoint Supreme Court Judges we have ever had. I caution my fellow liberals, particularly the younger ones, to be patient.

[MSB]

Wrong .

If a lesson to the 'left' came out of the Clinton years, it was to be FAR more progressive. Clinton saw over a reduction of Democratic power at every level BUT the presidency as he expended ZERO political capital to support the liberal elements of the party.

[MegWe]

If Clinton did as you suggest he would not have been relected. He did use much of his political capital in his futile health care fight. Obama will not make the same mistake.

[Bonobo]

Clinton is the original centrist. Where do you think welfare "reform", don't ask, don't tell, and NAFTA came from? And why do you think it's younger people who are anxious about Obama's centrist actions, rather than those with the benefit of direct experience of Clinton's accommodationism?

[PalaceOfWisdom]

Obama could appoint the reanimated corpse of Ronald Reagan and Republicans would still find a way to criticize him. He keeps trying to appease a party of grumpy old white men that America has rejected. Change my ass.

[tbone99]

We kid ourselves that O.is trying to appease the right. The facts are starting to indicate he is of the right.!

[igotthis]

You are joking, right?

[tomsemioli]

Business as usual....