Policy, Legacy and Power - Obama's First Supreme Court Nomination

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  1. The BKP
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    Last Friday Associate Justice David Souter informed President Obama he would be stepping down from the Supreme Court at the end of its' current term. While Joe Sixpack may have greeted news of Souter's retirement with little more than a bewildered look and shrug of the shoulder, it sent a jolt of electricity through both the Obama administration and its' Liberal base. With the announcement, little more than a hundred days into his presidency, Obama has been handed a golden opportunity to impact both politics and public policy in the United States literally for decades to come.

    While any serious discussion of judicial philosophy fell off the political radar of last fall's presidential campaign, Obama will now have the responsibility for nominating Souter's replacement to the Court. Though the average length of service on the Court is currently sixteen years, Justice Stevens - nominated by President Ford - has served for 33 years. With the current average length of service being twice as long as the maximum two term presidency, nominations to the federal judiciary - and the Supreme Court in particular - are a part of a president's legacy that extends his impact on public policy long after his administration's swan song. Accordingly, the opportunity to nominate a justice to the Court is one that is approached with the highest degree of deliberation and a keen awareness of the long term political and societal impact of one's choice.

    In addition to extending one's influence on the political and social life of the nation long past their tenure in the White House, nominations to the Court also signal in concrete terms the philosophical direction a president hopes the judiciary will take in both the near and long term. The ability to impact the philosophical lean of the Court for decades to come is one of the least appreciated but potentially most significant powers a president can exercise.

    Though Liberal interest groups are pushing their personal favorites for consideration and clamoring at the prospect of influencing Obama's ultimate decision, one must remain cognizant of the fact that Souter's replacement will do nothing more than maintain the political status quo of the Court. Already considered one of the Court's quartet of liberal justices, even replacing Souter with a more activist or socially progressive justice will not alter the 4-4-1 right-of-center composition of the Court. In order to do so, one of the seats currently held by the four solidly conservative justices or right-leaning, swing justice Anthony Kennedy would have to open up. With an average age of 63 among the conservative cadre, prospects for this short of a "Pelican Brief" type conspiracy appear strikingly long during Obama's first term, or even a potential second term for that matter.

    Far more likely to happen is Obama will have the opportunity to replace Justices Ginsberg and Stevens, 76 and 89 respectively. While replacing Ginsberg and Stevens along with Souter would allow the President to surpass Clinton's two nominations to the High Court and indelibly leave his stamp on it, since the two are already counted among its' liberal stalwarts it will still do nothing to alter its' political balance.

    While Souter's retirement is a significant opportunity for the President, it is one fraught with political pressure and potential pitfalls. As this morning's cartoon points out, in addition to judicial philosophy, political considerations will play a major, if not decisive role in the President's ultimate selection.

    Among key Democrat constituencies coveting Souter's soon-to-be-vacant seat are women, blacks and Hispanics. With women and blacks filling prominent Cabinet and staff positions in the Obama administration, Hispanics are particularly intent on seeing the seat filled with one of their own. Though making up only 9 percent of the electorate this past November, Hispanics voted overwhelming for Obama, giving him a crushing 67 to 31 percent victory over Republican nominee John McCain. While it initially appeared that Obama would acknowledge the growing political significance of the Hispanic community with Arizona Governor Bill Richardson's nomination as Secretary of Commerce, Richardson was forced to withdraw from consideration due to a federal grand jury investigation revolving around alleged pay-to-play schemes during Richardson's gubernatorial tenure. In light of this disappoint, the Hispanic community believes filling the vacant seat from their ranks would acknowledge their growing political and economic influence as well as their status as America's numerically leading minority group.

    Meanwhile, women and blacks argue Obama should use this opportunity to expand their representation on the Court. Blacks in particular believe Justice Clarence Thomas is not representative of their community or its' political orientation and priorities. Accordingly, they would like to see a more socially and politically progress black rise to the Court to counterbalance Thomas's influence. Making up 53 percent of the electorate and voting for Obama 56 to 43 percent over McCain, women would similarly like to see their representation on the Court expand. They argue that they have in fact lost ground in light of Justice Sandra Day O'Conner's being replaced by Justice Samuel Alito. What this leaves the President with is a classic situation where no matter whom he nominates, he is damned if does and damned if he doesn't.

    While the President can appease two groups in one nomination, he cannot appease them all. Should he nominate a Hispanic woman or a black woman, he rewards two key constituency groups while denying another. Worse still, there is the possibility he could offend two of the three by nominating a man; however long the odds are of this actually happening.

    With speculation currently revolving around US 2nd Circuit Court of Appeals Judge Sonia Sotomayor, it appears as if Hispanics and women may have the upper hand at the moment. Not only would this reinforce Obama's support among these groups, Sotomayor would be the first Hispanic and only the third woman to serve on the High Court. Given the running narrative of Obama's presidency played up both by the press and the administration itself, Sotomayor's nomination would compliment the carefully crafted and readily cultivated imagery of historic and groundbreaking change that surrounds the President. Nonetheless, one should not lightly discount the influence and political pressure coming out of the black community and its' urban power bases from Chicago to New York and Atlanta and Washington itself.

    Regardless of the President's final choice, change will indeed come to the Court through his hand as it has with so many other aspects of American politics. The question is though, how substantive will that change be?

    All rise, faithful readers. The Court will soon be in session.

    Stay tuned for further updates as events warrant and the President nominates the latest among those who sit in judgement of all wrong.
     

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