A symbol that Obama wants a fight would be the choice of either Cass Sunstein, formerly of the University of Chicago and now working in the Office of Management and Budget, or former Yale Law dean Harold Koh.
Justice John Paul Stevens, 89, is hinting that he will be making an announcement about his future soon, and he can be expected to retire before the next election, lest the Senate turn further to the right after 2010. But because of Stevens’ liberal leadership on the Supreme Court, the Obama administration has a number of complicated calculations to make before settling on his succesor. Sure, Sonia Sotomayor was a home-run appointee. Not only did she help cement Hispanics—America’s fastest-growing minority group—into the Democratic coalition, but she also made her opponents look like foolish old white guys trying to pretend it was still 1955, when women like Sotomayor were supposed to shut up and clean things. The notion that the best they could do was impute some sinister implication to the word “empathy” gave the game away before it began. And the fact that, despite her one ill-considered assertion of the value of a “wise Latina” on the court, her record was so lacking in ideology that the opposition could pin nothing of substance on her at all.
Nominating Sunstein or Koh would likely spark a filibuster, which may, of course, be exactly what Obama wants. Of course it may not.
But there was only one Sotomayor. Now, post-health care, Obama faces a much angrier and united Republican opposition, and he has lost his veto-proof majority. He is going into what will surely be a bruising and, ultimately, losing election season with a divided party on the one hand and a dispirited base on the other. That base, while cheered by the last-minute health-care victory, is tired of being treated like an afterthought in the president’s calculations, and could argue that in replacing the court’s most important liberal voice, Obama owes them one. The political argument for this lies in the fact that something, anything, needs to be done to recapture even a fraction of the intensity of commitment that put Obama over the top in 2008, and an all-out fight for an unapologetic liberal justice would be just what the doctor ordered.
What’s more, the administration’s record on this issue has been all but indefensible until now. At the end of 2009, despite more than 100 vacancies on the federal bench, Obama had nominated just 33 federal judges, of whom a mere 12 were confirmed. In comparison, during the same period, George W. Bush had nominated 65 judges, of whom 28 were confirmed. (Clinton’s numbers were 45 and 27, respectively.) The number of Obama’s nominations has since risen to 52, of which a total of 17 have now been confirmed.
By almost any standard this is pathetic, but for a former law professor who, more than any of his recent predecessors, understands the importance of such appointments over the long haul, it is particularly shameful. A strong liberal appointment, therefore, would not only fire up the troops, it would focus attention on the issue of the courts, and allow Obama to demand action not only on the Supreme Court but on everything underneath it as well. But such an appointment will undoubtedly piss off the Blue Dogs, who are already unhappy with the administration’s decision to force-feed health care to the Congress in the wake of Scott Brown’s surprising Senate victory in Massachusetts. More than a few of them would likely join the opposition for a choice whose views hewed too closely to the man being replaced. And speaking on Fox News Sunday, Jon Kyl, a member of the Senate Judiciary Committee, floated the notion of a filibuster should Obama nominate “an overly ideological person.”
“There are still pros and cons to be considered,” Justice Stevens told The New York Times’ Adam Liptak regarding the timing of his impending retirement after almost 35 years on the court. “I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” he said. “The president and the Senate need plenty of time to fill a vacancy.”
Stevens is no doubt tempted by the possibility that if he stays, he could become the oldest and longest-serving justice in Supreme Court history. Given the sway his opinions have earned over the years in his transformation from a moderate Republican to a flaming liberal—at least by the changing standards of the Supreme Court, he may be the most influential unfamous person in America. In a poll taken last summer, according to The Washington Post, only one in 100 Americans question knew who the guy was.
It is a measure of how far American politics has shifted to the right that, while Stevens has undoubtedly moved leftward a bit while on the court, he was appointed by a Republican president, Gerald Ford, despite a strong support for abortion rights and a decidedly generous view of the need to protect civil liberties, especially of freedom of speech.
Stevens’ retirement points to some ugly truths about the court in its present incarnation. Nothing in Stevens’ lengthy tenure—with the possible exception of the court’s fiat in stopping the recount in Florida to award the presidency to George W. Bush—made him madder than the recent decision in the Citizens United case, which unleashed corporations to spend whatever they want to influence elections. It was not only the substance of the decision he abhorred but also the manner in which the Roberts court went about changing the law without concern for precedent. In his angry 90-page dissent, he charged, as Jeffrey Toobin noted in The New Yorker, that “the way the majority had handled the case was even worse than the legal outcome.” There were principled, narrower paths that a court that was serious about judicial restraint could have taken, he wrote: “Essentially, 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.”
Taking off on Justice Stevens’ sudden talkative spurt, Politico’s Josh Gerstein tries to read the tea leaves and offer a list of potential nominees, along with implied odds of who might be picked under what circumstances and what it might mean. This being the Internet, you don’t have to pays yer money, but you can still takes yer choice. Not only ideology but age, gender, ethnicity, and now even sexuality are part of what the president needs to take into account before making the plunge. A quick perusal of the list leads this reader, at least, to jump out current solicitor general and former Harvard Law School dean Elena Kagan, who is nice and young at 49, and having never been a judge, is blessedly innocent of the kind of paper trail that has tripped up so many nominees in the past. She had good relations with conservatives at Harvard and, like Obama, tends to look for a middle ground when one is available. And unlike Judge Diane Wood of the 7th Circuit Court of Appeals or Justice Merrick Garland of the D.C. Circuit Court of Appeals, she is not closer to 60 than to 50.
A symbol that Obama wants a fight would be the choice of either Cass Sunstein, formerly of the University of Chicago and now working in the Office of Management and Budget, or former Yale Law dean Harold Koh, both 55. Either one would likely spark a filibuster, which may, of course, be exactly what Obama wants. Of course it may not. Fifteen or so months into his presidency, the truth is, we still have no idea.
Eric Alterman is a professor of English and journalism at Brooklyn College and a professor of journalism at CUNY Graduate School of Journalism. He is the author, most recently, of Why We're Liberals: A Handbook for Restoring America's Important Ideals.