Posts Tagged ‘nominee’

President Obama Should Not Nominate Someone Just To Avoid a Fight

April 12, 2010

No matter who President Obama nominates, short of it being John Yoo or Robert Bork, the Republicans are going to jump up and down and stomp their feet that the person is a liberal, communist, nazi, marxist,  judicial activist, who will substitute their judgment for that of the legislature or of the states or interpret the constitution to accommodate their policy preferences.

If he is going to have a fight on any nominee regardless of who he or she is, he should at least fight for someone he really wants (instead of trying to avoid a fight).

BTW, you should not pay any attention to Republicans who scream about judicial activism but support court challenges to Health Care Reform.  It will take great feat of judicial activism to not only overturn the legislation that passed both houses of congress and was signed into law by the president but also to overturn decades of precedents to get there.

SCOTUS Nominee That Would Most Excite the Democratic Party Base

April 12, 2010

If President Obama wanted to electrify his base, and not just his those who have JDs or follow legal decisions like sports, he would nominate Secretary of State Hillary Clinton.  While the selection of people like Professors Pam Karlan, Kathleen Sullivan or Larry Tribe would rev up the liberal legal community, most voters haven’t the faintest idea who they are, let alone what there stances are on legal issues.  While most people, including myself, do not know where Hillary stands, most people know who she is. And most who know who she is think she is pretty liberal.  She could turn out to fool everyone like C.J. Earl Warren or J. Stevens.  But I doubt that would happen.

If President Obama wants to help his party in November, there are few choices that would be better.  Plus, she is a former Senator and the Senate usually does not give its own a hard on confirmation.

One of the Most Interesting Article on Justice Stevens and Selecting a Nominee

April 10, 2010

I wanted to highlight one of the most interesting articles written about Justice Stevens and how important is it that the nominee meet some diversity requirement.  With any nomination opportunity as of late, especially for a Democratic President, there is always clamoring to pick this person, in part, because they are a woman, or that person, in part, because they are African American or that person because they are Jewish.  But Justice Stevens defied everyone when he became the leading liberal on the court.  Writing today on Slate.com,  Dahlia Lithwick and Sonja West wrote:

But if the retirement of Justice Stevens highlights a single value we should demand in a justice, it’s got nothing to do with race or gender or even professional background and everything to do with empathy for others.

Yes. That’s right. We just said the e-word. . . .

There may be no sitting justice who better exemplified the difference between diversity and empathy than Justice Stevens. He grew up white, male, heterosexual, Protestant, and wealthy. At no point in time was he a prisoner at Guantanamo Bay or a frightened teenage girl. And yet, over the decades, his rulings and written opinions repeatedly showed us that he could see the world through the eyes of those with very different life experiences from his own. In other words, he tapped his inner “wise Latina woman” when the case called for it, and we are all better for it. Stevens used empathy not to skew or manipulate his jurisprudence, but to consider the effects of his decisions on real people and to accept that the law can look quite different depending on where you’re standing. That’s part of what made him such a great justice, and it’s a quality the president should bear in mind in selecting his replacement.

So before you think President Obama needs to nominate a half-asian, half black, disabled, gay, Protestant, just think of Justice Stevens and his background.

When Thinking About Obama’s Supreme Court Nominee, Just Remember the Law of 5

April 9, 2010

As I said in post last year when Justice Souter announced his retirement, I warned that putting a liberal Scalia on the bench would be an epic mistake.  In that post, I said the most important rule to remember is the “Law of 5,” referring to the proposition that Justice Brennan lived by–“You can do anything with 5 votes.”  What we have seen in the past decade is Justice Stevens take on the role once performed by Justice Brennan.  With a Court evenly dividend between the “liberal” and “conservative” Justice with Justice Kennedy in the middle on many votes, Justice Stevens used the “political” skills acquired over a career of 34 years to convince Justice Kennedy to side with the liberals rather than with the conservatives many times.  Using those skills, Justice Stevens was able to shape areas such as the War on Terrorism, Death Penalty jurisprudence and the environment.  He did this by making compromises on the legal basis for many decisions, narrowing the results others or using his power to assign the opinions to Kennedy to get Kennedy’s vote.

Did he win all of these battles?  No, just look at cases such as Bush v Gore or Citizens United v FEC.  But he did get a majority for more liberal results more times than could be thought possible given the fact that for most of the past 20 years,  7 of the 9 Justices (including himself) were appointed by Republican Presidents.  It is this skill over all others and over any specific ideology that will be missed most by liberals.  And it is the skill to convince 4 others to join you that President Obama should keep front and center as he makes his decision on whom to nominate.

More From Our Dysfunctional Senate–Aaron Sorkin Strikes Again

February 5, 2010

And Aaron Sorkin Strikes again.  In the West Wing episode entitled “The Constituency of One” Conservative Senator Carrick (Tom Skerritt), a Democrat from Idaho places a hold on a backlog of military promotions preventing a vote on their promotions so he can secure an expensive but faulty missile launcher to be built in his home state.  In the fictional Senate of the West Wing, one Senator, acting alone, could block the approval of military promotions for dozens of officers.  If only this just occurred in fiction.

(more…)