iOS app Android app More

The Progress Report

Posted: August 6, 2009 12:21 PM

The Road Ahead


Today, the Senate is expected to affirm what was obvious the moment that President Obama introduced Judge Sonia Sotomayor to the American people: Sotomayor's brilliant intellect, compelling life story, and 17-year record of fidelity to the law prepare her well for the Supreme Court. She will make an outstanding justice. Yet even as she ascends to the pinnacle of the legal profession, Sotomayor joins a Court controlled by conservatives loyal to an ideology that consistently places powerful interest groups ahead of the law.

Storms On The Horizon: Two major First Amendment cases await Sotomayor when she steps into her new chambers at the Supreme Court. The first is Citizens United v. FEC, a campaign finance case. Although Citizens United was originally scheduled to be decided this summer, the Court ominously ordered the parties to brief whether a landmark precedent limiting the influence of corporate money in politics should be overruled. Sotomayor's record strongly suggests that she will support robust campaign finance regulation, but her five conservative colleagues appear poised to declare longstanding bans on corporate money in politics unconstitutional. Should the conservatives get their way in Citizens United, it could be the end of meaningful campaign finance regulation. Similarly, the Supreme Court has teed up an important church-state separation case that could free the Roy Moores of the world to fill America's landscape with taxpayer-funded monuments to their personal religious beliefs. In Salazar v. Buono, the justices will consider whether a cross erected in the middle of a federal land preserve can be challenged under the First Amendment's Establishment Clause. For years, Justice Sandra Day O'Connor was the key fifth vote upholding the Constitution's ban on government endorsements of religion. With her gone, it is likely that this ban will be whittled away into non-existence.

The Back Bench: Although Obama found an exceptional nominee for the Supreme Court, future presidents' ability to do so will depend on the judges Obama is able to confirm to the lower courts. Every single one of the Supreme Court's current members was seasoned by his or her prior appointment to a lower federal court, and conservatives have long understood the need to appoint young, up-and-coming attorneys to the courts in order to create a deep bench of future Supreme Court nominees. So far, however, Obama has not charted the same course. The average age of his nominees is 55 -- five years older, on average, than the men and women given lifetime appointments by President Bush. Most of the names on Bush's "short list" of potential Surpeme Court nominees were nominated by President Reagan or President George H.W. Bush when they were in their 30s or early 40s. (Sotomayor was 37 when she was first appointed to the federal bench.) Moreover, the need to fill the courts with young lawyers who share Sotomayor's brilliance and fidelity to the law is especially acute in light of the advantage right-wing judges currently hold on the federal bench. During the Clinton administration, then-Senate Judiciary Chair Orrin Hatch (R-UT) systematically kept President Clinton's nominees off the bench by allowing a single home-state senator to veto a nominee. Wielding this authority, segregationist Republican senator Jesse Helms blocked every single one of Clinton's nominees from North Carolina. When Bush came into office, however, this rule suddenly vanished. The result is a judiciary which conservatives will continue to dominate unless Obama is just as aggressive in appointing brilliant young lawyers to the federal bench as Bush was.

Repairing The Law:
In just the past few years, the Court's conservatives have consistently placed employers' interests ahead of laws forbidding employment discrimination; they have ignored the plain meaning of laws protecting the environment; and they have repeatedly seized opportunities to immunize corporate interests from the law. Thankfully, there is no evidence that Sotomayor will join the Court's conservatives in this crusade. But so long as the right-wing majority sits, Congress must carry the burden of pushing back against the Court's worst decisions. This year's Lilly Ledbetter Fair Pay Act was a good start; and recently introduced bills that would overrule two Supreme Court decisions limiting ordinary Americans' access to courts are also promising signs. Ultimately, however, Congress must be far more aggressive in order to undo the damage caused by decades of conservative decisions eating away at the laws workers, seniors, the environment and the insured depend on to protect them against discrimination, abuse and fraud. The American people elected this Congress to turn away from the Roberts Court's right-wing values: It's time for Congress to step up to the plate.

by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ian Millhiser and Nate Carlile

To receive The Progress Report in your email inbox everyday, click here.