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Richard Greener

Richard Greener

Posted: April 10, 2010 02:22 PM

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.