If I were advising the President as to what qualities he should look for in his first Supreme Court choice, I’d tell him, “Pick a woman, pick a minority and pick the most liberal minority woman you can find.”
But of course President Obama isn’t asking me. Everything about his previous selections for his Cabinet leads me to believe he will select a moderate centrist who can be approved by the majority of the Senate and without a major fight from Republicans (though no matter who he picks they’re going to bitch about).
There isn’t a more powerful and less understood branch of the federal government than the U.S. Supreme Court. I don’t remember when I became so fascinated by these nine jurists , but ever since I read Bob Woodward’s The Brethren I’ve paid attention close attention to the inner workings of the Court, the personalities involved, and the enormous impact their rulings have on the nation.
The men and women a president appoints to the federal courts is one of their most enduring legacies. George Bush has given us John Roberts and Samuel Alito for many moons to come and their conservative credentials are rock solid. Prior to Bush, Clinton elevated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. They have offered a reliably, if colorless, moderate alternative to the Court’s four-man conservative bloc of Roberts, Alito, Fat Tony Scalia and Uncle Clarence Thomas.
One thing I admire about Republicans is they don’t make any apologies for nominating red-meat right-wingers to the judiciary. They call them “strict constructionalists” who don’t “legislate from the bench” when of course that’s precisely what they do once they’re on the job. There’s nothing remotely moderate about Roberts and Alito and they have been every bit the darlings of the Right Bush intended for them to be.
Seven of the nine Justices were appointed by Republican presidents and with the exception of the retiring David Souter and John Paul Stevens, they have not deviated much from conservative orthodoxy. I don’t begrudge Bush for sending purists to the Court. If anything, I would hope Obama follows suit.
But I really doubt President Obama will send a fire-breathing, unabashed liberal to the Judiciary Committee. Even with a Democratic majority of 59 in the Senate, it’s not a solid majority as nobody can predict when someone like Evan Bayh or Ben Nelson will pull some stunt and vote with the Republicans or what kind of mischief nominal Democrats-in-name-only like Joe Lieberman and Arlen Specter will get into.
The sad truth for the President is it’s not just Republican resistance to his nominee he has to contend with. There are a lot of timid Dems in Washington that will run like scalded dogs from anyone considered “too liberal” for their taste.
The favorite to replace Souter is Sonia Sotomayor for reasons Esquire magazine explained in their October 2008 issue: If Obama becomes president, his first nominee to the Supreme Court will likely be Sonia Sotomayor. As a Hispanic woman with 16 years of court experience, Sotomayor would slay two of the court’s lack-of-diversity birds with one swift stone. “These are criteria that matter these days. Even Laura Bush was disappointed that her husband didn’t name a woman to replace Sandra Day O’Connor,” says Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard. And because Sotomayor has a reputation for staying behind the scenes and sits on a federal bench known for its centrism, it’s likely that she would be able to garner a two-thirds majority in the Senate, even if the Democrats only control an estimated 55 or so seats. Plus there’s an insurance measure if the nomination gets too politicized publicly: Sotomayor was appointed to the U. S. District Court for the Southern District of New York in 1992 by President George H. W. Bush. Says Tushnet, “If you’re a Democratic strategist, you can gin up ads that say, ‘She was good enough for George H. W. Bush. Why isn’t she good enough for Mitch McConnell?’ “
Oh, I doubt McConnell and the GOP won’t find plenty of reasons why Judge Sotomayor isn’t good enough even if they have to make up some.
Barring some scandal (or unpaid taxes) it’s a pretty safe bet President Obama will get his nominee confirmed by the Senate. The only questions are how badly will they be bruised by the process and will they make a difference in slowing the rightward drift of the Court or just a new replacement part in the Ginsburg/Breyer/Stevens moderate minority.