Judicial Drama

With John Paul Stevens' impending retirement, Barack Obama now has his second opportunity to appoint a justice to the Supreme Court. Republicans surely know that they won't be able to actually stop Obama's nominee from being confirmed. So they are no doubt hoping to create a teachable political moment, one that clarifies distinctions between the parties and keeps our political clash of civilizations humming along. At times like this, when the outcome is not much in doubt, we should ask: Is there anything to be gained from the theatrical presentations we will soon be witnessing?

The answer to that probably depends on where you sit. The last time around -- during the confirmation of Sonia Sotomayor -- the Republican opposition was able to steer the conversation, unified in its approach and rhetoric. Unfortunately for Republicans, the message was one of hostility toward minorities in general and Latinos in particular. All of the core arguments they made against Sotomayor were variations on this theme of white grievance: She once ruled against a white firefighter, she had given a speech brazenly extolling the benefits of her personal experience, she got into Princeton because of affirmative action. The message came through loud and clear, and Latino voters found the exercise quite enlightening.

If the rumblings of those allegedly in the know are to be believed, the nominee this time around will be white, though perhaps a woman -- the three front-runners are Solicitor General Elena Kagan, Judge Diane Wood of the 7th Circuit Court of Appeals, and Judge Merrick Garland of the D.C. Circuit. So we may not hear quite as much about the cross the white man bears. But Republicans will be in high dudgeon anyway. As The New York Times reported over the weekend, preparations are already underway to attack potential nominees. According to opposition research files the Times obtained, "If Mr. Obama nominates Judge Wood, conservatives would seek to portray her as an abortion-rights extremist who is hostile to Christians. Should the pick go to Ms. Kagan, conservatives are likely to accuse her of subordinating national security to a gay rights agenda." In other words, it will be all culture war, all the time. That leaves out the Tea Partiers, who despite speaking so often of their deep and abiding love for the Constitution don’t care much about the culture war, or the courts.

It's just as well. What we will see in the coming weeks is a Kabuki of the courts. Republicans will pretend to be outraged about whatever meaningless bit of opposition research they can assemble about the nominee. The nominee will in turn pretend to have no opinions about anything and assure Senate Republicans that he or she might just rule their way on important cases.

The last Supreme Court nominee to be truly frank during his or her confirmation hearing was probably Robert Bork -- and we know what happened to him. Today's nominees hide behind a fog of vagueness meant to render the moderate and the ideologue equally obscure. Consider Chief Justice John Roberts, who was thought by so many to be the soul of moderation when he was nominated in 2005. In a compelling metaphor, Roberts assured the country that as a judge, his role was to be nothing more than an "umpire" calling "balls and strikes." Then-Sen. Barack Obama reported that in their private conversation, Roberts told him that "he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak." It was the kind of statement that would get a Democratic nominee in deep trouble, but it was no doubt meant to assure Obama that Roberts could rule in ways he'd like.

Obama didn't buy it, and voted against the nomination. Just as the future president predicted at the time, Roberts' private reassurances turned out to be about as backward a representation of his jurisprudence as one could devise. In fact, if there is one unifying theme to Roberts' opinions, it is his preference for the concerns of the strong over the weak. As Jeffrey Toobin put it in a New Yorker profile of Roberts last year, "In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."

As the nominees have become less forthcoming in their confirmation hearings, the opposition has become more eager to find reasons to oppose them. Antonin Scalia, the Court's right anchor, was confirmed by a 98-0 vote in 1986 -- and there was no mystery about what kind of justice he'd be. Two years ago, Scalia told an audience he would have trouble being confirmed now. Likewise, the liberal Ruth Bader Ginsburg was confirmed by a 96-3 vote in 1993.

Those days are now gone. Try to imagine a Democratic president naming his nominee, and Senate Republicans -- not to mention the Rush Limbaughs and Bill O'Reillys of the world -- saying, "Well, it's not the person I would have chosen. But given that this is a Democratic president, this nominee isn't so bad." Not in this universe -- they're in the outrage business, and business is booming.

So we'll once again be treated to the sight of Sen. Jefferson Beauregard Sessions III of Alabama, the ranking Republican on the Judiciary Committee who once called a white attorney a "disgrace to his race" for taking civil-rights cases, lecturing the nominee about the need for blind justice. We'll hear lots of condemnations of liberal "judicial activism" -- by the same people who cheer the Court's recent dismantling of campaign-finance laws and dream of striking down health-care reform as well. And we'll watch the nominee keep his or her head down and avoid saying much of anything.

We could, on the other hand, have a lively and edifying debate about the role of the Supreme Court and the meaning of the Constitution in 21st-century America. We could -- but we won't.

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