Obama’s first SCOTUS nominee arriving soon
May 1, 2009
Supreme Court Justice David Souter, appointed by former president George H.W. Bush, will be retiring, which means the long-anticipated first Supreme Court nomination of the Obama administration is around the corner. I suspect President Obama will be predictable here, presenting to the Senate a non-originalist, pro-Roe nominee. Of course, I am open to being surprised.
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I think it’s safe to say that if this report is true, Notre Dame was a warm-up. That seat is valuable, and watching it being given to a pro-abort (which wouldn’t be as likely under McCain) and dashing dreams of a pro-life majority any time soon (as I think Souter is one of those conservatives didn’t think would be replaced in these 4 years) will spur a massive effort to block any pro-abort justice.
Abortion may not be Obama’s legislative priority or even in his paygrade, but he’s going to have to deal with it now.
Michael Denton,
How are conservatives going to block whomever Obama nominates? Try getting one Democrat to vote against her. It won’t happen. Sonia Sotomayor and Leah Ward Sears seem to have absolutely no written record or substantial jurisprudence on abortion. I think Kim Wardlaw and Elena Kagan both have specifically written pro-choice things, so if they were nominated, abortion would at least be an issue, but I still don’t think you’d get Casey or Nelson to vote against them (or vote against cloture when it comes down to it). And I’m guessing Obama still picks up 5-10 Republicans, who think the Senate should defer to the President on such nominations when the nominee is qualified.
Activists will make a big deal, and come away with nothing. If conservatives are smart, they will be lobbying Obama not to pick someone too extreme, using the carrot of true bipartisan support for his eventual nominee (say 15 Republican votes in the Senate). That’s about all they can hope for. It seems to me that if you think there’s something the right can do to stop a very popular president from getting his nominee on the court, you’re indulging some pretty strong fantasies.
When it comes to politics, Obama seems to me to be quite a bit smarter than his opponents, and his modus opperandi seems to be to make his opponents make mistakes. So if he nominates Sotomayor, for example, the right won’t be able to block her based on abortion; they’ll focus on her civil liberties or immigration decisions, or something like that, and it will make them look like extremists, the same way the continued defense of torture does.
Diane Wood.
Specter switches parties, ensuring a filibuster proof Democratic majority in the Senate, and two days later Souter announces he’s retiring. Coincidence?
It looked to me like NPR broke the story before Souter wanted to announce it.
Feddie, I think it will be Sotomayor.
Let’s all remember that Obama doesn’t have his 60 votes quite yet. Franken hasn’t been seated yet. Now, he probably will be by the time the nominee comes up, making the point moot. Besides, Specter’s few good qualities came in helping GOP justices.
Zak:
I didn’t say they could; I think you’ll see the pro-life wheels turning hard, as this is supposed to be the big fight of the pro-life movement (the way the national organizations have worked at least). They’ll have little chance, but they’ll have their large letter-writing campaigns and all, if for no other purpose then reminding people who seem to have forgotten that picking a justice is a big deal to the pro-life movement. Indeed, it appears that Obama will have the opportunity in his first term to replenish the almost the entire liberal side of the court (3 of the 4 by most estimates), adding to the difficulty of reversing Roe v. wade.
The effect for obama will not be that he loses his justice. The effect will be that like it or not, abortion is going to become an issue. Republicans, if they want to keep the pro-life vote, will have to make a show of a fight, even if they have no chance of winning.
It will also be interesting to see how the pro-life Democrats handle this. This will be a big litmus test to see how these people vote.
That was a rambling way of saying I don’t think the justice will blocked (for abortion reasons anyway) but that the approval process will be an important one anyway for future politics.
Keep an eye out for Chief Justice Leah Sears of the Supreme Court of Georgia.
It seems that quite a few of the justices over the years turn out slightly different than the Presidents who nominated them perhaps intended. Obama will nominate a very competent person – likely a women -
but who knows how that persons views on issues change ones he/she is seated. This is actually the beauty of the system and the nice thing about human beings. And yes that is exactly what is so very important with the kind of political system in place around here.
All will be well
Let’s all remember that Obama doesn’t have his 60 votes quite yet.
I’m just repeating what a few of the commentators have said: Sixty Democrats will not automatically mean sixty votes.
Who cares whether he points an “orginalist” or not? Isn’t that just sola scriptura constitutionalism?
Who cares whether he points an “orginalist” or not? Isn’t that just sola scriptura constitutionalism?
No, originalism (in its proper form) is more like a prima scriptura consitutionalism that restricts and limits judicial action by according a primacy to the Constitution and the intention of its framers and ratifiers (the ratifiers cannot be left out). I think if the Constitution is looked at simply as a “living, evolving document” and primacy is accorded to previous judicial rulings, then you may as well just throw the Constitution out.
Would not Oabam want to a Hispanic on the court. I mean I know it not all race but I have to think that might be likely
Obviously, a lot of us Catholics who supported Obama now have our regrets. I had assumed the vaccany on the Court would be simply replacing a Democratic appointed pro-abortion justice with another one. I did not expect a Republican appointed pro-life justice like Souter to retire. Had McCain been elected, we could expect Souter to be replaced with a like-minded justice.
I did not expect a Republican appointed pro-life justice like Souter to retire.
Souter is pro-Roe, so a pro-choice Obama nominee will keep SCOTUS at status quo on abortion.
Where are those “Feddie for SCOTUS” bumper stickers? I know I put them somewhere…
I did not expect a Republican appointed pro-life justice like Souter to retire.
I suppose you intended that as a dig at Republicans, but it also comes across as a swipe at pro-lifers foolish enough to believe they could have gotten a pro-life majority on the court by supporting McCain. A new survey shows the country almost evenly divided now on keeping abortion legal. As a Catholic, what satisfaction do you get from allying yourself with abortion supporters and sniping at those who think Roe v. Wade led this country terribly off course?
I think if the Constitution is looked at simply as a “living, evolving document” and primacy is accorded to previous judicial rulings, then you may as well just throw the Constitution out.
Not sure I agree. Given primacy to a written text is always a mistake (sorry Calvin, sorry Mahomad). A “living document” is a better way of aligning the positive law with the natural law, in my view.
Poli,
Kurt was being facetious, pointing out what an impact the pro-life movement had on the judicial nominations of Reagan and Bush I. BTW, I agree with your argument/explanation regarding originalism. Well put.
Michael,
What you’ve said is essentially that the pro-life leadership will demonstrate that it is full of sound and fury, signifying nothing. It may rage against Obama and generate a lot of money in a weak fundraising season, but it will just alienate moderates who lean pro-life but are turned off by Randall Terry-like activism. Far better to work behind the scenes, although that has been made difficult by activists attacking Obama mercilessly and politicians demonstrating little desire to compromise. If Mitch McConnell did negotiate with Obama to exclude some of the more extreme people like Wood or Kagan, I bet he would be excoriated by many pro-life groups and by the Glen Beck/Rush Limbaugh contingent.
Feddie,
I read an op-ed by Sears in the Washington Post a couple years ago about strengthening families. It intrigued me. What’s your opinion of her? It seems to me, she’s the best option for conservatives.
MM,
Calvin’s Institutes demonstrate quite a bit of abstract philosophizing that makes the charge of fundamentalism seem pretty weak. A “living document” seems to me the best way of aligning positive law with the whims of an oligarchy.
Not sure I agree. Given primacy to a written text is always a mistake (sorry Calvin, sorry Mahomad). A “living document” is a better way of aligning the positive law with the natural law, in my view.
I don’t consider Calvinism to be advocating prima scriptura. Catholicism does, however, hold to prima scriptura, which simply accords priority in doctrine to the Bible insofar as it is a concrete, inspired, and inerrant text. Prima, of course, not being the same as sola.
But I wonder how much mileage we will get out of a comparison of religious hermeneutics and Constitutional interpretation, especially since the orientation toward the and the functioning of the Constitution are quite different than those of a sacred, religious text.
I’m hard pressed to recall a Democratic appointee who shifted to the right during his tenure on the Court.
Arguably–maybe–Byron White, but he was a New Frontier Democrat, and that was definitely a different era.
I think your analogy between scriptural and constitutional fundamentalism is also weakened by the fact that one can hardly argue that the Supreme Court is guided by the Holy Spirit as Catholics believe the Church to be. So whereas in religion we know that reliance upon a static document is a mistake, that does not mean that it is a similar error to do so in politics, where there is hardly an eqivalent infallible authority to ensure the correct “development of doctrine”.
Zak-
Sears is the best we can possibly hope for. She is a judicial liberal, but she and Thomas are dear friends, and my hope is that he will be able to influence her to some degree. I will be thrilled if Sears gets the nod (compared to say Diane Wood).
Leah Ward Sears has not only been an outspoken supporter of stable two-parent families, she has also led efforts to put restrictions on no-fault divorce in order to curtail the break-up of families with children. Her efforts were rebuffed by supposedly conservative GOP legislators who (it turns out) sometimes had a strong personal interest in easy divorce. Her appointment would be a tangible sign that Obama is serious about his own pro-family rhetoric, which is why I don’t think she has any chance of being appointed.
Policraticus Says:
Souter is pro-Roe, so a pro-choice Obama nominee will keep SCOTUS at status quo on abortion.
NO!?! REALLY?? But he was a Bush appointee? We were told to vote for Bush because that would stop abortion! This makes no sense.
Zak Says:
Poli,
Kurt was being facetious
OK. Maybe. :)
ron chandonia Says:
I suppose you intended that as a dig at Republicans, but it also comes across as a swipe at pro-lifers foolish enough to believe they could have gotten a pro-life majority on the court by supporting McCain.
I do not believe any pro-lifer was foolish for thinking so. I fully respect those who supported Senator McCain based on that belief. It was probably the best reason to vote for Senator McCain along with the fact that McCain is an honorable man who has served our nation with bravery and devotion.
But you can take it as a swipe to those who not only believed that themselves, but insisted under pain of sin that every other person on earth must also believe it, disallowing any liberty of independent judgment.
Kurt was being facetious, pointing out what an impact the pro-life movement had on the judicial nominations of Reagan and Bush I.
Oops…sorry Kurt.
MIchael I don’t think the GOP could stop Hitler from winning confirmation at this point
Of course though we shall again see the huge double standard at play. For the most part Republican Senaotrs give a lot of deference to Dem nominees for the Supreme COurt and they get confiremd easy.
However for some reason every GOP nomination to be bench appears to be a death match
But I wonder how much mileage we will get out of a comparison of religious hermeneutics and Constitutional interpretation
Not very much, as far as I can tell. The Bible and the Constitution have radically different composers, purposes, and interpretive traditions. I am surprised someone as intelligent as MM would suggest the analogy. It strikes me as facile and inaapposite, although I guess it highlights superficial similarity between two groups of people MM dislikes: evangelicals and originalists. Both care about the text of a document, but for very different reasons.
“For the most part Republican Senaotrs give a lot of deference to Dem nominees for the Supreme COurt and they get confiremd easy.”
James, here is all the evidence anyone needs to know why some people who have held their nose and voted Republican in the past stopped doing so this past election.
This will be fun to watch – chances are Obama/Biden will play this just pitch perfect and use the opportunity to further diminish the Republicans standings with the general public.
http://andrewsullivan.theatlantic.com/the_daily_dish/2009/05/souters-farewell.html
Notice how Obama is playing the Republicans on the Torture issue? They try so hard to defend something they should run away from as fast as possible – this is not that difficult make Cheney and Bush the fall guys and start fresh – the longer they try to defend this the worse it will be.
Do you think one second the general public has the stomach to see soldiers in jail for torture while the big shot enablers can run their mouth and make millions giving fancy speeches?
Same with the Abortion issue – Obama has shifted to a position that a solid majority of Americans is rather comfortable with – the crazies are folks that find it o.k. if 8 year old incest victims have to give birth.
Pro choice / pro life will not be the key question -
people are so tired of this it is not even funny.
People see a functioning overall very good nation – right now – with the very laws on the books –
no time to mess with a good thing.
I trust that in the end the crazies will neither succeed in politics nor in our church.
The Republican party will reemerge as a vigorous political force – real Catholics will force our church to get real.
What is going on right now has no future.
Ggoose,
I have not had real problems with Republicans giving huge deference to the Democrat on their nominess. Elections matters as they say
I would like for once to afforded the same courtesy. It seems about Judge that was put by Republican is portrayed as some ultimate threat to the Republic.
I guess I agree with Archbishop Chaput when he said at a recent q and a session
CROMARTIE: Let me follow up her question by asking one of my own, adding to it. What would you think about nine Catholics on the court? Is there a statute of limitations on the number of Catholics that can be on the court? Wendy, I know that you would probably appreciate that addition to your question.
CHAPUT: The Supreme Court doesn’t make law, as we know. It interprets the law. I think it’s much easier from a moral perspective to be a justice – a judge – than it is to be a legislator. Legislators are the ones who make laws and change laws. But to interpret the law in its fidelity to the Constitution is a much less morally compromising kind of position to have, I think.
I’d rather be a justice than a politician, in terms of dealing with my conscience, because if we write bad laws in this country that are constitutional, then the judges – the justices – have to interpret the laws as allowed by the Constitution, even if they don’t like them, even if they would think they’re not good for the country, it seems to me, even if they think they’re not moral. That’s what justices do. So I had the impression that Wendy thinks that the Supreme Court writes the law. Certainly that’s not my impression. I know it can’t write the law. In terms of not wanting all the justices to be Catholics, I agree with you, Michael. That would not be a good idea in the United States.”
So yes I do give some deference here because how one views interpretation of the Const there can be legit debate on
MIchael I don’t think the GOP could stop Hitler from winning confirmation at this point
Why would they want to?
Yes, Senators Vandenberg and Taft, and former President Hoover, were not exactly ahead of the curve in opposing Hitler.
Obama plays Rope-A-Dope with exquisite skill. The GOP nearly always falls for it, and with Specter’s departure it seems the GOP is more likely to intensify its failures in this regard.
Souter would very likely not have left if McCain were elected. He’s not even old yet. The main thing here is that his seat gets the chance for a half-generation extension if Obama chooses someone who is around the age Souter was when he was appointed.
Dean Kagan was in my law school class. That was a few years ahead of the Obamas.
The likelihood that there will be 40 votes to filibuster here is nil. Specter’s move didn’t change. This is not a lost opportunity, nor is it going to be terribly consequential.
And the real issue will not be abortion – which is something of a legal sideshow at present – but executive power. Bush fils appointed Alito and Roberts not because of abortion (hey, in their one abortion case, they did not argue to overrule Roe or Casey, folks) but because he expected them to defer to his VP’s precious and noxious theory of the unitary executive.
What the GOP should be doing – but they cannot to the extent they drank the unitary executive Kool-Aid in the past 8 years – is trying to get Obama to appoint someone to live up to Obama’s professed positions that go against the unitary executive theory. That’s good for everyone in the long run. But I don’t expect the current GOP senators to be wise enough to make that nifty shift.
whoops, and Hamilton Fish. You know I can’t miss an opportunity to take a shot at Hamilton Fish. :)
okay, since you ask.
Late in life, Ham Fish was a little hard of hearing. He was at an event in the Episcopal Church hall near his estate in Westchester County. A woman approached him and says Oh, Congressman Fish, I want you to meet the new deacon. Fish responds NEW DEALER? Why do I want to meet a New Dealer? The lady says to him No, Mr. Fish, not New Dealer. New deacon. He is a son of a bishop. Hamilton Fish blursts back Yeah, they all are.
Kurt,
Good story.
Is Ham Fish in a barrel when you’re taking a shot at him?
And is ham fish ok to eat on Fridays?
Liam, you are absolutely on target with your comment above.
For the Republican Party to make an issue of the “unitary executive” in the hearings related to whoever is Obama’s appointee would be for it to signal to the American electorate that they have heard their judgment on Bush and “neo-conservatism” and are prepared to alter their “brand” and move back to traditional “small government” conservatism.
However, I don’t expect it to happen; they must lose one or two more Presidential elections before they either split apart or disencumber themselves of their enthrallment to Christianists and right-wing Catholics.
Meanwhile, in dealing with Obama and his party, the Catholic establishment would do well to listen the editors of America–who are, themselves, more in line with the tack that the Vatican would like to take to a head of state who, the shrewd curialists better understand than America’s Catholics apparently do, comes out of a religious tradition that is wholly opposed to orthodox Christian theology:
http://www.americamagazine.org/content/article.cfm?article_id=11636
I’m surprised you didn’t come up with this head: http://chinshihtang.blogspot.com/2009/05/nova-scotus.html
My pick would be the Governor of Michigan, Jennifer Granholm. The key strategic objective, though, is to break up the 4-1-4 deadlock which has obtained for more than a decade (4 hard-right twerps on one side, 4 variously extreme liberals on the other, and a conflicted schmuck in the middle).