‘Socialist’ Obama to Move Supreme Court to Right: Ann Woolner
Commentary by Ann Woolner
April 14 (Bloomberg) -- Republicans would be busily planning their filibuster if President Barack Obama nominated to the highest court anyone who opposes the death penalty, supports abortion choice, condemns presidential overreach even during wartime, favors gay rights and says church and state should be strictly separate.
That is the record that Justice John Paul Stevens will leave when he retires by early July. It isn’t a record likely to be matched by anyone Obama could or would name to succeed him.
And that means the Supreme Court’s long march rightward, directed by a well-organized conservative legal movement dating to the days of President Ronald Reagan, will continue.
No one would expect the court to shift leftward when Stevens retires. The current precarious balance would be left intact with a presumed liberal replacing the court’s leading liberal.
The surprising thing is that a president who opponents call socialist, radical and worse probably will be making the court more conservative than it is already.
Among three top candidates on Obama’s list, none have records that match Stevens for consistent support of individual rights.
Any who did would be labeled extremist, perhaps a national security risk by Republicans and their allies.
Liberal Counterweight
And forget about Obama picking someone who would serve as an ideological counterweight to Justices Antonin Scalia or Clarence Thomas. A candidate as leftist as those two are to the right would correctly be slammed as judicial activists, with a filibuster likely.
The polarized politics of Washington and the energized conservative movement would see to that. Already demonized over health-care reform, Obama doesn’t have the stomach (some might call it guts) for that kind of confirmation fight.
A moderate would be fine in some other era, and wouldn’t mark much of a change. But given Stevens’s record and the sharp ideological divide on the court, a centrist would represent a huge shift rightward.
No justice was more reliable or as effective when it came to limiting the executive power grab and erosion of constitutional rights that the Bush administration advocated, for example.
Swing Voter
And considering the number of 5-4 votes the court has issued in major cases over the past few years, losing Stevens to a swing-voter would give the four reliable conservatives more sway.
This means that those of us who considered Bush’s detainment, interrogation and civil liberties policies as debasing the Constitution and the rule of law will be uneasy if U.S. Solicitor General Elena Kagan gets the nod.
A law review article she wrote in 2001 advocated for greater executive authority, albeit it in a different realm, through government agencies. And working within the Clinton administration, she aimed at extending the president’s reach.
In congressional testimony at her confirmation hearing to be solicitor general and in legal briefs she has filed for the Obama administration, she sounded more like George W. Bush than Stevens.
Plus, liberals fret about the skimpiness of Kagan’s record. They worry she may turn out to be a reverse of David Souter, whose liberal opinions infuriated conservatives expecting the nominee of George H.W. Bush to be like them.
Moderate Choice
U.S. Court of Appeals Judge Merrick Garland, a second leading possibility for the high court, does have a record -- a solid, moderate one.
Republicans may fault him for writing the opinion that said, for the first time, that the military had failed to give sufficient evidence to indefinitely hold a detainee at Guantanamo Bay. But that was a unanimous opinion, shared by appointees of and Reagan and George W. Bush.
On the whole, Garland, the former federal prosecutor who oversaw the Unabomber case and Oklahoma City bombing investigation, is considered the most moderate, meaning the least liberal, among those three apparent leading candidates.
On the other end of that list is appellate Judge Diane Wood of Chicago. She has been consistently for abortion rights and has a record of serving as an effective counterpoint to some of the federal judiciary’s top conservative thinkers on a range of issues.
She may not be a John Paul Stevens. But Wood comes close enough that it might well disqualify her. Already the anti- abortion crowd has predicted all-out war if Obama names her.
He probably won’t. Democratic presidents are typically less driven to make ideological appointments to the bench than are Republicans.
Decades of Work
Conservatives have worked for decades to transform the federal judiciary. Slamming liberal judicial activism is standard campaign rhetoric aimed at rallying the troops and raising funds.
The upshot is that we now have judicial activism by conservatives on the court. As Stevens wrote in a dissent in January’s now-notorious campaign finance ruling, “Five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Look for more of that no matter who Obama appoints next.
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