The next justice

Featured, Politics, US — By Richard Albert on March 25, 2010 at 06:58

President Barack Obama’s next nomination to the Supreme Court, his second in as many years, may come as early as this spring, followed shortly by Senate confirmation hearings in the summer.

For liberal activists, the timing is perfect. For the President, however, the prospect of a mid-summer battle over the Supreme Court could not come at a worse time.

To understand why, consider the context for the coming confirmation battle.

The showdown over the Supreme Court will occur against the backdrop of the looming 2010 midterm elections. It will summon the most heated passions of Republicans and movement conservatives who are anxious to use the declining approval ratings of the Democrats as a springboard to propel them back to power.

If past midterm elections were contentious—with partisanship displacing respectful deliberation and expediency suffocating independent judgment—this summer’s political landscape will be even more divided and more partisan than usual. Why? Two words: health care.

The President and congressional Democrats have just scored a momentous victory for health care reform, but their triumph has come on the strength of the controversial tactic of reconciliation. The procedural consequence of reconciliation is to defeat the threat of a filibuster, but its more practical effect is to silence Senate Republicans. And that is not be the best way to cultivate goodwill in the august Senate—the very chamber that must confirm the President’s next Supreme Court nominee.

When it comes to the next Supreme Court nomination, liberal activists are of one mind: the sooner, and the more liberal, the better. As they see it, the President should seize any Supreme Court vacancy as an opportunity to nominate a young, liberal lion to serve both as an intellectual counterweight to the conservative Justice Antonin Scalia and as a generational ballast to Chief Justice John Roberts, also a constitutional conservative.

Although liberal activists speak proudly of the President’s decision last year to nominate the relatively young Sonia Sotomayor, they nonetheless long for something more. Something much more, in fact, because in their view, Justice Sotomayor is not a sufficiently steadfast liberal voice, certainly not one who could stand as an embankment against the rising tide of conservativism on the Supreme Court. So liberal activists continue to push for a tried and true liberal lioness who will carry their banner and rescue the Constitution from what they perceive as the evil designs of conservatives.

Fortunately for those liberal activists, perhaps never before has there been such a rich pool of competent and fiercely committed liberal judges, scholars, and public servants from which the President could choose his next nominee.

The conventional shortlist includes Michigan Governor Jennifer Granholm, Solicitor General Elena Kagan, Stanford Law Professor Pamela Karlan, State Department Legal Advisor Harold Koh, Massachusetts Governor Deval Patrick, and Ninth Circuit Judge Kim Wardlaw. All are staunch progressives whose credentials few liberal activists could deny. But it is precisely because they are such stalwart liberals that the President is unlikely to nominate any of them.

The President knows he must choose strategically. If he wants to retain the support of liberal activists—and, as a result, protect his left flank against a possible third-party presidential candidate in 2012 who would do to him what Ralph Nader did to Al Gore in 2000—the President must nominate a candidate who will satisfy liberals, but not too much as to alarm conservatives.

There are only a few liberals whom the President could nominate to the Supreme Court whose record or reputation could conceivably withstand what will be overwhelming resistance from conservatives. Those liberal candidates fall into two categories.

The first category consists of female or African-American candidates who have espoused moderate views on the most contentious and contested moral issues of the day, namely abortion, same-sex marriage, and capital punishment.

Candidates fitting this bill include former Georgia Chief Justice Leah Ward Sears, Yale Law Professor Stephen Carter, and Homeland Security Secretary Janet Napolitano. It would be difficult for conservatives to craft and sustain a compelling narrative that would defeat any of these candidates. Each one has achieved professional excellence, commands the respect of the bench and bar, and reflects, in his or her very being, the very best of the promise of America.

But the second category of liberal candidates is far more interesting. It consists of Americans whose stature has made them unassailable in the eyes of liberals while nonetheless being acceptable, however grudgingly, to a majority of conservatives. There are perhaps only two such candidates in this category: President Bill Clinton and Secretary of State Hillary Clinton. Though they may arouse the anger and disappointment of a significant number of Americans in many parts of the country, the Clintons are beloved by most Americans, who regard them as dutiful public servants.

True, both of the Clintons are vulnerable to criticisms, some personal and others professional. Those criticisms, however, are fleeting, and more importantly, belied by the sheer force of the intellectual firepower that either of them would bring to bear on the Court.

Each could carry the liberal banner on the Supreme Court and there is no doubt that either would provide a mighty challenge to the conservative side of the bench. But as it happens, health concerns are likely to preclude the selection of President Clinton, which leaves Secretary of State Clinton as the more plausible choice.

Perhaps the installation of a Justice Clinton will not happen this summer, or ever for that matter. Nor may the Court ever welcome to its bench Justice Sears, Carter or Napolitano. But those are the types of candidates that President Obama must nominate if a Supreme Court vacancy arises this spring or summer, as Senate Republicans plot to exact their revenge against the Democrats for invoking reconciliation to pass health care reform.

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Author: Richard Albert (12 Articles)

Richard Albert

Richard Albert, a graduate of Yale, Oxford, and Harvard, is an Assistant Professor at Boston College Law School, where he specializes in constitutional law and democratic theory. He writes about constitutional politics, the separation of powers, the role of courts in liberal democracy, and religion in public life.

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