06/28/2010 05:12 am ET Updated May 25, 2011

A Right-Wing Court? The Democrats Fault

Sure, the Supreme Court leans to the right - but why? Who is really responsible for the hardcore conservative base of this co-equal, third branch of our American representative democracy? If you think the answer is partisan politics, you're wrong.

Near the end of June 1986, Ronald Reagan nominated Antonin Scalia to be a Justice on the Supreme Court. At the time Republicans held 54 seats in the Senate. Certainly not enough to forestall a filibuster (had there been one) and hardly enough to guarantee confirmation. Imagine if 11 Republican senators had bolted their party and voted not to confirm Scalia. You can't win with 43 votes. The nomination would have gone down, taking Antonin Scalia with it, tumbling anonymously into the dustbin of History. Of course that didn't happen. How many votes did the Democratic Party opposition manage to rally against the most conservative Justice in modern Court history? None. Zero. Zip. Nada. Scalia was confirmed on September 17, 1986 by a vote of 98-0. Perhaps you think 11 senators could never desert their party on a Supreme Court nomination. Not that many. Not ever.

Five years later, President George H. W. Bush sent to the Senate perhaps the least qualified nominee ever to be confirmed for the nation's highest Court. Clarence Thomas was confirmed after 99 days of contentious hearings and debate. Unlike the amiable Scalia, the Thomas vote was 52-48. If you didn't know better you might assume that once again a Republican majority held tightly together and with great discipline passed their President's man through. Wrong. The Republicans did not hold fast. Senators Jeffords (R-VT) and Packwood (R-OR) cast their votes against the nominee. How then did an undistinguished nominee like Clarence Thomas ever get on the Supreme Court when 2 Republicans joined the already Democratic majority in that Senate?

Clarence Thomas became Justice Thomas only because 11 Democratic Senators voted for him. Included among them were Thomas' home state Senators Wyche Fowler and Sam Nunn of Georgia. Nunn had been a stalwart Democrat of the Jimmy Carter Presidency and Fowler was supposed to be some sort of example of what "The New South" was going to become. Instead, these two gave us decades of Clarence Thomas as one of the nine most powerful people in America. Sam Nunn and "The New South's" prototype, Wyche Fowler, eventually proved crucial in making George W. Bush the selected - not elected - 43rd President of the United States. The unintended consequences of misplaced state loyalty.

Also voting for Clarence Thomas way back then was a Democratic senator from Alabama, a man named Richard Shelby. He not only deserted his party on this vote, he later fled them entirely and he's now sitting in the same Senate chamber today as a Republican. Think there's any chance he'll repeat his rebellious behavior and vote against his new Republican colleagues on a Barack Obama Supreme Court nominee?

Making the Court even more right-wing, Samuel Alito barely squeezed into his seat also being confirmed by a narrow 52-48 vote. How partisan was that tally? Not very. Without the affirmative votes of 4 Democrats, including the venerable Robert Byrd of West Virginia, the far-right Alito would also be somewhere far from the limelight of Washington DC today, unable to embarrass his courtly robes, and himself, mocking the President of the United States during his State of The Union Address.

And yes, even the "Umpire" - the current Chief Justice - the man who, with a straight face, told the Senate he would only be "calling balls and strikes" on the high bench - the man who has quickly become the most right-wing Chief in modern Court history - John Roberts was confirmed with a whopping total of 20 Democratic Senators voting for him. Blue Dogs, you say? Democrats in name only? All really conservatives? Okay. Leahy from Vermont; Dodd of Connecticut; The West Virginia duo of Byrd and Rockefeller; the union-loving Levin from Michigan and Russ Feingold from The People's Republic of Wisconsin? All of them - Blue Dogs? When Thomas had been confirmed, Sam Nunn and Wyche Fowler said it was appropriate and polite for the home state Senators to vote for confirmation. The South loves tradition. But, Samuel Alito's home state New Jersey Senators, Lautenberg and Menendez voted against him and Maryland's John Roberts saw his home state Democratic Senators Mikulski and Sarbanes muster the same New Jersey style courage and vote "Nay" on his nomination.

In the end, we have a powerful, nearly unbreakable core of right-wing conservative Justices on the Supreme Court because the Democratic Party has failed to provide the partisan opposition for which it was elected. If you don't like the current Court - blame the Democrats. It's all their doing. And now, if they nominate a "Republican approved" nominee to replace Justice John Paul Stevens - who was himself confirmed in only 16 days back in 1975 by a vote of 98-0 - who will you hold responsible as the Court falls farther and farther rightward? Did Reagan or the Presidents Bush look for Democratic approval for their nominees?

To halt the Supreme Court's inexorable march toward the far right, the President must nominate a legitimate liberal, a known quantity, a product of the Democratic Party left, a progressive without apologies, explanations or excuses. He must nominate someone who is the intellectual equal of Scalia and every bit the partisan of Thomas, Alito and Roberts. Would such a nominee meet the stringent qualifications set out to be a Justice of the Supreme Court? Well, what exactly are those qualifications?

None. Zero. Zip. Nada. Look it up.

With the Constitution as his guide, Barack Obama has a free hand in appointing anyone he likes to be the next Justice of the Supreme Court. The Constitution - the very same document that lays out in detail the necessary qualifications to be elected to a seat in Congress, to be a Senator and to be President or Vice President of the United States - says not a single word about who can, or who cannot be, a judge on the Supreme Court. Anyone may serve.

Senators, pundits, TV talking-heads, and bloggers galore may offer judgments on the needed qualifications, but opinions are... well, we all have one. By law, anybody Barack Obama wants to nominate to the Supreme Court, is qualified. And by law anyone who secures the "Yeas" of a majority of Senators voting will be confirmed. The last time I looked the Democratic Party had a wide majority in the US Senate. Its time to use it.

Its time for a Democratic President and a Democratic Senate to stand up and be counted. No doubt this nominee and future Justice will serve longer than all those involved in his or her selection. For President Obama and all those now sitting in the Senate, the judgment of History awaits this choice and them.