06/18/2009 05:12 am ET | Updated May 25, 2011

Obama's Next Appointee -- Part II

Many facts are overlooked in the Supreme Court nominating process. There are always some unexpected divisions on the Court. For example, in the free speech area, Justice Scalia's positions are often more protective of First Amendment values than Democratic moderates. For example, in last week's Supreme Court FCC case involving two spontaneous dirty words, Justice Thomas made clear his broad view of First Amendment protections.

Secondly, new issues arise and different judges stray from party lines. Judge David Souter is today put on the left side of the Court - but that was not always so and not always consistent. A liberal Justice would not have agreed with Justice Souter's Supreme Court decisions in the First Amendment and criminal areas and would not have voted to chip away at abortion rights.
His First Amendment record is not nearly as good as Scalia's. A recent study shows he denied 19 First Amendment claims while upholding 15. He sided with Rehnquist nearly as much as he did with the liberals.

Thirdly, going to battle with conservative Republicans over this issue is good for Obama. Given his Senate majority, he will win and winning is always good. It helps solidify his base and hurts the Republicans. I cannot imagine the Republicans gaining ground by attacking a pro-choice judge who is critical of the Bush detainee policies and Bush's view of unbridled executive power. Especially a nominee who is young and Hispanic.

The President should also learn from the Republicans. Their stranglehold on the Supreme Court and lower courts exists because since 1980, at the urgings of Newt Gingrich and the then-newly formed Federalist Society, Republican presidents nominated and appointed younger and younger judges: a 31-year-old arch-conservative without any legal experience excepting writing about the law for a newspaper to the Fourth Circuit Court of Appeals, a 33-year-old with limited experience to the Fifth Circuit Court of Appeals. Both became candidates later considered for the Supreme Court. Fortunately, neither was formally nominated because of the groundswell of hostility.

Young Supreme Court appointees can sit, as may Thomas, Alito and Scalia, for 30 or more years. Age is as essential a criterion as liberalism.

There are many fine judges in the country who are far better than the names being circulated. There are many other fine candidates who are not on the bench who must be considered.
Be wary of the Congress that so voted overwhelmingly for Chief Justice Roberts. Don't trust today's Senators to make the right decision - as liberal a Senator as Russ Feingold was smitten with Roberts, lost all perspective and worked for his nomination.

The American people must get involved in the process.

Obama's apparent failure to see the extraordinary effect of these Justices can be tragic for this country.

Today's liberals seem to be so only because of the extreme positions taken by the Court's majority.

Obama should not be looking only to moderates like Stephen Breyer, David Souter or even Ruth Bader Ginsburg. Because of who they are, and because of who their conservative colleagues are, they shall best be remembered for Bush v. Gore, chipping away at abortion rights and, in a Louisville case two years ago, totally undermining Brown v. Board of Education. Very little has been positive.

Like some other constitutional law professors, some self-described as Democrats, Obama is wrong to looking at the Court's effect so narrowly. Obama is wrong in seeing the Court and its decisions as being so apart from what is and can be going on in the country. The interplay between those Justices, their decisions, the movements they helped support (such as the civil rights and the Vietnam protests) and the Congressional laws and states they helped motivate are all interrelated.

It must be apparent to our President that it is highly unlikely he would be sitting in the White House if not for the opinions and precedents of the Justices of the Warren Court.

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