The time is now to nominate a strong, decidedly liberal Justice to the Supreme Court. Unlike Congress and the Chief Executive, the makeup of the Court does not change every two, four or six years. The Supreme Court is a co-equal branch of our government. The Presidential responsibility for making nominations may be the most lasting aspect of any President's time in office. Surely President Obama knows, a failure to grasp that opportunity, to be true to the principles of those who elected him because they believed he shared those principles, is plainly unacceptable. Especially now, after the disciplined, unanimous and fiercely partisan opposition of the Republican Party to practically every legislative and policy position of this administration, any effort to placate Republicans on a new Supreme Court appointee would be a betrayal of the 70 million Americans who voted for Barack Obama to be President.
This President has the opportunity and the responsibility to stop the historical shift of the Supreme Court farther and farther to the right. This movement toward a more conservative membership is not a new development for the Supreme Court.
Here's a question: Who was the last newly appointed Justice who was more liberal than the Justice he or she replaced? Take a minute to think about that.
Byron White is the answer. White was named to replace Charles Evans Whittaker, a Justice who was so far to the right he would outflank even today's most conservative Justices. Whittaker resigned after an emotional breakdown and White was named to take that seat. When was this? Byron White was nominated by President John F. Kennedy and confirmed by the Senate in April 1962. Since then, 48 years ago to the month, each and every new Justice named to the Supreme Court has been more conservative than the one replaced. A half-century of inexorable conservative shift. The time to put an end to this is now.
After White's 1962 confirmation there have been 25 other Supreme Court nominees, resulting in 18 new Justices. Included among them have been 3 new Chief Justices. Each of the Chiefs has been successively more conservative. Warren Burger succeeded Earl Warren and was subsequently succeeded by William Rehnquist. As openly conservative as Chief Justice Rehnquist was, in his short tenure thus far his successor, the current Chief Justice John Roberts, has been dramatically more so. There are no umpires in the Chief's seat.
You might point to Justice White's successor to refute the Court's rightward move. Ruth Bader Ginzburg, a stalwart on this Court's liberal side, succeeded Byron White. But, as with all politics, time and distance influence measurement. By contemporary standards Justice White would be the most liberal judge on today's high court. So, Ginzburg, although a liberal herself, has actually been more conservative than her predecessor. Even the Court's first black Justice, the renowned Thurgood Marshall, did not make his seat on the Court any more liberal than it had been before him. Marshall replaced Justice Tom Clark, the man President Truman called, "My biggest mistake." If you can't imagine a Justice more liberal than Thurgood Marshall, remember that Justice Clark wrote the majority opinions in the Court's landmark decisions to ban Bible reading in public schools and to extend the exclusionary protections of the 4th Amendment to the states. How many votes on today's Supreme Court would either of those opinions manage to get?
Since Kennedy named Byron White to the Court, 7 nominees have failed to gain a seat there. Some nominations were withdrawn after the nominating President saw that confirmation would be impossible. Others were voted down in the Senate. A failed nomination is also nothing new in our history. There have been 29 failed Presidential nominees to the Supreme Court beginning with William Paterson, nominated by George Washington in 1793, and going all the way to Harriet Miers who was unsuccessfully nominated by George W. Bush in 2005. Of these nominees who failed to enter the Court, 15 were either withdrawn or the Senate took no action on them. But 14 nominees have gone all the way to a vote in the Senate where they were rejected. The first was John Rutledge in 1795 and the last to meet such a fate was Robert Bork in 1987. It is important to take note that perhaps the two most popular Presidents ever, George Washington and Ronald Reagan, both had Supreme Court nominees rejected by the Senate.
President Barack Obama has an historic opportunity to halt the nearly 50 year conservative shift in the Supreme Court. He was elected by voters who expect him to do just that. The last two Republican Presidents, Bush the Elder and Bush the Younger each nominated the most openly right-wing Justices available. The Elder's legacy will be forever linked to Clarence Thomas and the Younger is responsible for Justice Alito and the Chief Justice John Roberts. The Presidents Bush took principled stands. We expect nothing less from this President.
If we are to really get a change we can believe in, it must come in the Supreme Court. President Barack Obama needs to stand up and proudly nominate a strong, decidedly liberal nominee to replace Justice Stevens. Any nominee who is less should not be confirmed.
It is a stretch to deny that Justice Ginsburg was more liberal than the Justice she replaced, i.e., Byron White. And it is wrong to claim that White is more liberal than say, Stevens -- or indeed, Ginsburg, Breyer, or Sotomayor. While he was "liberal" on some issues -- including some involving race -- he was not more liberal on those issues than any of the aforementioned members of the current court. Among other things, White was in dissent in Roe v. Wade. He joined with Rehnquist, O'Connor, Scalia, Kennedy, Thomas in a series of cases that are anathema to liberals. White authored the decision in Bowers v. Hardwick, upholding states' power to criminalize homosexual sodomy. To claim he was more liberal than Ginsburg, who came to the Court a famous champion of equal rights, is an embarrassing error.
PERHAPS NOT! Reagan is loved by some but far from the most popular in general because he never does all that well in democrat rankings. Washington, Lincoln, Jefferson, FDR and JFK are consistently ranked the best of all time in nonpartisan polling. Teddy Roosevelt, Adams and Madison all ranked better than reagan in a 2007 rasmussen poll. If you just take favorability ratings, reagan usually beats out a few of the above but if you take into account favorability and unfavorability, reagan drops like a stone because while he matches up with favorable ratings meaning just pick best president ever, he does far more poorly than anyone in the top ten in unfavorable ratings. Eisenhower, Truman and Andrew Jackson all fall in around the same level as reagan - high up but not even in top 8.
Plus, you have to take into account that america clearly knows nothing about our history. Truman, LBJ and Polk are viewed far more favorably among historians than average americans. Eisenhower is never given credit for his accomplishments as he was likely the last nonpartisan president we ever had. (PLEASE READ COMMENT BELOW)
You wrote - "29 failed Presidential nominees to the Supreme Court beginning with William Paterson, nominated by George Washington in 1793"
It should be mentioned that Justice paterson did join the supreme court after his senate term had expired as washington first withdrew the nomination realizing that he accidently violated article 6 of the constitution. Shouldn't it not count if the nominee was withdrawn and later became a justice?
You wrote - "The first was John Rutledge in 1795 and the last to meet such a fate was Robert Bork in 1987."
It should be noted that Washington nominated John Rutledge as he was pivotal in the formation of the court but upon being nominated, despite having many friends in congress and the exec branch, Ruttledge was considered mentally ill and was an alcoholic after his wife's death. He was literally suicidal after being forced to step down as chief justice and gave a speech saying he would rather see george washington (a good friend of his too) die than see the jay treaty signed. I mean that is quite a good reason to reject someone and congress did not even reject the nomination. In fact, congress forced him to resign. They actually passed the nomination and he was chief justice for less than a year, That is quite different than congress rejecting an obama nomination because they fear "activism."
Despite consistently ranked in the top ten, I dont think america has any clue who our 11th president James Polk is or what he did. He led the US in the Mexican-American war. vastly expanded the country increasing its landmass by a third, expanded the executive branch, established a treasury and department of the interior, ushered in an era of free trade after reducing tariffs, opened a US naval academy and issued the first postage stamps. He basically set an agenda, achieved everything he wanted to in a single term and then, stepped down as he had promised to do. Polk almost set himself above the slavery battle, refusing to take either side in order to accomplish his goals. Truman said what made polk a great president is that "he said what he intended to do and did it." Something obama can learn from him. Polk is indisputably, the most underrated american president in history.
Do you teach history? Very few people know about crazy John Rutledge.
It should be noted that Washington nominated John Rutledge as he was pivotal in the formation of the court at the time but upon being nominated, despite having many friends in congress and the exec branch, Ruttledge was considered mentally ill and was an alcoholic after his wife's death. He was literally suicidal after being forced to step down as chief justice and gave a speech saying he would rather see george washington (a good friend of his too) die than see the jay treaty signed. I mean that is quite a good reason to reject someone and congress forced him to resign. They actually passed the nomination and he was chief justice for less than a year,
It should be mentioned that Justice paterson did join the supreme court after his senate term had expired as washington first withdrew the nomination realizing that he accidently violated article 6 of the constitution. Shouldn't it not count if the nominee was withdrawn and later became a justice?
All this anti-competition happened under their watch, and Lewis Powell who served on that bankrupt court. While the Newsweek reviewer in 1996 may not have recognized any significance to this investigation against GM. Now, with total collapse, mono-cultures, anti-competition in so many industries, I hope he understands the significance of this story and the persistent failure of US courts to protect open competitive markets against the amassed political power of concentrated controlling shareholders in every industry.
http://reclaimdemocracy.org/corporate_accountability/powell_memo_lewis.html
http://en.wikipedia.org/wiki/Great_American_streetcar_scandal
http://www.newsweek.com/id/102778
Byron "Whizzer" White was never a liberal judge by any standard.
He dissented in Miranda v Arizona writing:
"In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets ... to repeat his crime whenever it pleases him. ... The real concern is ... the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case."
He was a consistent foe of the doctrine of substantive due process. In Moore v City of East Cleveland, White dissented writing:
"That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court, ... comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the ... Constitution. ... [T]he Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably preempts for itself another part of the governance of the country without express constitutional authority."
"The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court."
White wrote the majority opinion in Bowers v Hardwick which upheld the right of the state to outlaw homosexual acts. This decision was reversed by a 6 - 3 decision of the court in Lawrence v Texas. Three of the six (not counting Stevens) who voted to reverse White remain on the court, Kennedy, Ginsburg and Breyer. At least on this issue, each of them is far more liberal than White.
He is also wrong in his claim that the appointment of White was the last time a justice was replaced by a more liberal justice, even ignoring Ginzburg. Arthur Goldberg was much more liberal than Felix Frankfurter and Thurgood Marshall was much more liberal than Tom Clark.
Obama needs to be abandoned by the left. I really have no idea whatsoever why some left wingers are still supporting him. It's time to move on already people. He is a failure. Start looking for the 2012 Democratic nominee already.
Good job Obama. Way to keep turnout of your former supporters low.
http://www.politico.com/news/stories/0410/35604.html
Obama has not fought for a single thing progressives care about, and has in fact actively sabotaged some causes that the left cares deeply about.
If Obama had an (R) next to his name, you Democratic lefties would be screaming your head off about him, yet you remain oddly quiet. Well, I guess if our government goes ultra-right wing and pro-Wall Street under Democrats, then it's OK, huh?
Too bad right-winger will never love Obama no matter how much he kowtows to them. But it is entirely possible, even likely, that those of us on the left will come to despise him and *gasp* stop supporting him because of his right-wing antics.
I can't see it happening before 2012, if ever. Think of all the damage this guy is going to do with 6+2/3 more years as president.