The pending resignation of Justice John Paul Stevens gives Barack Obama the chance to make his second appointment to the Supreme Court. It also represents what is likely to be his best chance to provide a foothold for a strong liberal presence on the Court to represent the reactionary foursome of Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito.
Here are three crucial reasons why Obama should nominate a sophisticated and tough-minded progressive along the lines of Stanford law professor Pamela Karlan, Legal Adviser of the Department of State Harold Koh, or Judge Diane Wood of the 7th Circuit Court of Appeals:
A void that needs filling
Justice Stevens has recently remarked that, "with the possible exception of Ruth Ginsburg," every judicial appointment since Stevens himself has moved the Court to the right. (Stevens himself replaced the acerbic left-libertarian William O. Douglas, one of the most liberal members in the Court's history.) Granted, that Ginsburg is an exception is more than possible: She has certainly had a more liberal record than Byron White, a dissenter in Miranda and Roe v. Wade and author of the Court's infamous (and now overruled) opinion in Bowers v. Hardwick, which concerned the criminalization of sodomy. Otherwise, though, Stevens is correct.
And while the Court's dramatic shift to the right in some measure represents electoral trends favoring the Republican Party, the random nature of the appointments process and America's anachronistic electoral system have exaggerated this shift. Conservative Republicans now dominate the Court although the Democratic Party has won the popular vote in five of the last nine presidential elections. And as reflected by the fact that a moderate Republican like Stevens became the leader of the Court's liberal wing, the nation's highest tribunal completely lacks a liberal in the mold of Douglas, Thurgood Marshall, or William Brennan. Presumptive front-runner Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values.
The Conditions Will Never Be More Favorable for Obama
Given the prevailing economic conditions, the question is not whether the Democrats will lose Senate seats in the 2010 midterms, but how many. If Obama is going to put a strong liberal on the Court, the window of opportunity will probably close in November. Particularly with Ruth Bader Ginsburg's retirement almost certain to come during Obama's first term, any moderates that Obama would be interested in nominating should be saved for later, when the margin in the Senate is narrower.
What's the Downside?
It might be objected at this point that a nominee like Karlan or Koh might compel a Republican filibuster. The proper answer to this is, so what? First of all, in the (probably unlikely) possibility that a filibuster of a nominee holds, the result would be the eventual confirmation of a more moderate nominee. If Obama preemptively nominates a moderate nominee, the result would be … exactly the same. In the worst-case scenario, progressives are no worse off.
This might be a problem if this would increase Republican obstruction in other areas, but with the centerpiece of Obama's first-term domestic agenda already passed, the prospect of further major legislation near zero, and Republican obstructionism in the Senate virtually maxed out, there's no reason to believe that a Republican filibuster would incur any net political cost. If anything, it would provide ammunition for a narrative painting the Republicans as the "Party of No" while providing a venue for defending liberal constitutional values. And finally, the filibustering of a Supreme Court nominee for the first time since 1968 (and second total) would escalate the cycle that is likely to lead to the elimination or substantial modification of the filibuster rule -- something that would be a massive victory for democracy.
To paraphrase Joey La Motta, if Obama puts forward a strong progressive nominee and we win, we win. If we lose, we still win. Obama's choice should be clear: Nominate a strong progressive voice to the Court.