OUT OF LEFT FIELD
HOW TO MAKE THE
COURT TURN LEFT
...a Supreme Court justice?
Heres a Bold Plan To Bolster President Obama
By STAN ISAACS
One of these days or weeks or months it may dawn upon President Obama that the Republicans will not cooperate with him. No way. No how. Should he come to that realization he might begin to take advantage of the majority he won in the election and the majority that the Democrats have in the House of Representatives--and will have when Minnesota ships Democrat Al Franken off to Washington to take his rightful seat in the Senate.
Then the President can start sticking it to the Republicans. No namby-pamby stuff, but the kind of moves that would have the Party of No screeching to a faretheewell from the pulpit of Fox News.
When David Souter announced he would resign from the Supreme Court, Obama nominated a fair-to-midlin liberal to replace him in Sonia Sotomayor. That should have relieved the Republicans. For them she was nobody who could be regarded as a radical leftist, i.e. Ruth Bader Ginsberg, the somewhat liberal justice appointed by President Bill Clinton, who the Fox mouthers think of as a Trotskyite bomb thrower.
No matter how qualified-and tame--Sotomayor has been labeled by judicial scholars, the Republicans have been sniping at her, looking for chinks in her feminist armor. The sly Senate minority leader, Mitch McConnell, has even whispered the dreaded word--filibuster.
If Obama had accepted that the Republicans would fight him no matter how vanilla an appointment, he might have given them real reason to howl. He could have taken the suggestion of Washington activist Tom Bregman and named Anita Hill to the Court. Anita Hill? Clarence Thomas Anita Hill? Yes.
Hill is a lawyer of some standing. She taught law at the University of Oklahoma, at California Berkeley, and is currently on the faculty of Brandeis University. She has won honors, including a First Amendmnt award given by the Ford Hall Forum.
The first President Bush set the bar so low by naming Clarence Thomas to the court that nobody can say Hill or Sotomayor--or any shyster lawyer--isnt qualified to serve. And wouldnt the public dialogue be enriched by the reality of Anita Hill taking a place on the court alongside Clarence Thomas.
Okay, Obama blew that opportunity. Heres another.
But first some background. When Franklin Delano Roosevelt launched the New Deal in the early 1930s he was frustrated by a reactionary Supreme Court. It struck down the NIRA (the National Industrial Recovery Act), struck down laws which would have benefitted women, revived agriculture. It threatened to gut the whole New Deal. Six no votes kept beating him.
Roosevelt finally responded by trying to increase the number of Supreme Court members. He would appoint liberal justices up to the number of 15 to get the kind of Court he needed. This was labeled a packing the Court scheme by opponents. It was widely excoriated and Roosevelt had to back off.
The crisis was averted when one of the no guys, Justice Owen Roberts, started changing his votes against Roosevelt. This was called the switch in time that saved nine. The whole thing became moot when the anti justices started retiring and such liberals as Hugo Black and later William Douglas joined the Court.
We now have a Court that almost consistently has lined up 5 to 4 for the so-called conservatives over the so-called liberals. Chief Justice John Roberts, Samuel Alito, Clarence Thomas and Anthony Scalia have been the consistent conservatives (and whatever happened to the term reactionaries)? Judge Anthony Kennedy has been the swing voter, leaning right more often than left with John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer.
This lineup will not change appreciably with Sotomayors arrival because she will only match Souters voting record. The 5-4 margin will remain.
So I am saying Obama should pack the Court by naming a few more justices of his persuasion. He should do it by learning from FDRs mistakes.
First off, lets note that the number of justices--nine now--is not written in stone. The judiciary act of 1789 established a six-person Supreme Court. Over the years, for various reasons--mostly political--the number of justices went from five to six to seven to nine to 10 to seven and settled at the current nine in 1869. Nine is not a sacred number.
Roosevelt made the mistake of not alerting his friends to the plan before he launched it on the public. Some of his loyalists reacted negatively almost from shock at the boldness of his move because it came as a surprise. FDR allowed the opponents to dominate the national dialogue and the Court ploy fell by the wayside--just about made irrelevant when Roberts began his switches.
I must admit I have heard nothing but dismay from lawyer friends whom I have talked to about Obama packing the court. Horrors has been a typical comment. This would only make the Court more political, was a general reaction as well.
Of course the Court is nothing but political. And it figures to remain politically conservative against Obama if he even makes eight years. Most of the young guys are on the conservative side. Consider:
Roberts 54, Alito 59, Thomas 61, Kennedy 72 and Scalia 73. Against Stevens 89, Ginsberg 76, Breyer 70--and Sotomayor 55, if she makes it.
I am not holding my breath waiting for Obama to realize he cant work with these implacable Republicans. Or that he would dare put together a strategy to overcome the Court he has inherited.
©2009 by Stan Isaacs. The Stan Isaacs caricature is ©2001 by Jim Hummel. This column first posted June 29, 2009.
TO ACCESS STAN ISAACS' ARCHIVE OF COLUMNS ON THIS SITE, CLICK HERE: ISAACS ARCHIVE
You can comment on this column online. Please address your message to either "The Editors" or Stan Isaacs. To send an email, click here and don't forget to mention Stan's name: email@example.com
HOME About Us Index To
Talkback Contact Us