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Almost everyone who practices law, and particularly those who spend a fair amount of time doing appellate work, flinches a bit when the first thing discussed when a vacancy arises on the Supreme Court is some perceived need for the President to fill some geographical, ethnic, or sexual criteria or to try to predict how a particular appointee might "vote."  Even the idea that cases are decided by a "vote" and that justices opinions are based on their political beliefs seems so wrong and does not always comport with what happens when cases reach the Court.  

But this is what always happens.  Listening to and reading all that is dispensed on the subject makes a person think that the Supreme Court is not that much different than the Congress and that Justice Stevens, say, is sort of the Minority Leader in a "house" whose "Speaker" is the Chief Justice.

It's not true, of course, as is known by anyone who regularly reads the opinions of the Court or hears its arguments.  That the Court would not permit the previous president to set up his own form of quasi-military justice and then argue that it was not subject to federal judicial review since the "trials" were to be held in Cuba was not as surprising to those who have some understanding of how the Court actually operates, but seemed to shock those who see nothing more than 4-4 and Justice Kennedy on every case.

Still, the purists are not exactly right either.  There has always been a political component to the Supreme Court almost from its first days.  The tensions between President Jefferson and Chief Justice Marshall for instance, so well chronicled by Dean James Simon, led to the Court's arrogation to itself, based on its right "to say what the law is" to overrule Congress and the Executive and, by determining that a law duly enacted violates the Constitution, forbid its enforcement or application.  

That was a remarkable "power grab" in today's language. far closer in concept to the royal prerogatives of England than those who led our country to separate from the colonial power might have imagined.  That the case itself involved the appointment of minor "judges"  by an outgoing presidential administration to prevent their appointment by the new President, and that the Chief Justice had been politically aligned with the outgoing President, must have appeared to be less based on law than on raw power, particularly to a new President told that he had to accept the edict of a Chief Justice who sided with his political opponents.

Through its history, including the politically corrupt Bush v. Gore ruling so brutally dissected by Renata Adler, the Court's assertion of its nearly royal authority to tell the President what to do, or school districts what they must do, has often been invoked to resolve political disputes.  It made George W. Bush president, but they also all but "removed" Richard Nixon from the presidency, as Congress kept avoiding its own responsibility to do so.

And yes, it was the former Governor of California, not previously considered a trailblazer who led the Court to desegregate the public schools, and so much more, to the point that he became the far right's "poster boy":  the subject of Impeach Earl Warren signs all thorugh the country but especially in the state where he had been elected as its chief executive.

So what does this mean for the next appointment?  Who should it be?  What factors should the president take into consideration?  Should it be someone who has run for office, such as Governor and then Chief Justice Warren, particularly since nobody who has run for office is currently on the Court and the retiring Justice is the only one who has even served in appointive political office?

I laugh even as I lament the idea that the former Dean of the Stanford Law School, Kathleen Sullivan, is considereda prime candidate for the Courtas a protege of Laurence Tribe, but Professor Tribe, probably one of the most brilliant legal thinkers in the country, is not.  Dean Sullivan would obviously make a great Justice, but, of course, so would Professor Tribe.

As almost always, it seems, the answer may be found in the television progrm that kept us same during our years in the wilderness, "The West Wing".  Here from the episode in the first season called "The Short List" are words written for the character "Sam Seaborn" either by the great Aaron Sorkin or the not so great Pat Cadell (you can tell who I think wrote them) about whether the Constitution recognizes a right to privacy as described in Roe v. Wade:

It’s not about abortion. It’s about the next 20 years. Twenties and thirties, it was the role of government. Fifties and sixties, it was civil rights. The next two decades, it’s gonna be privacy. I’m talking about the Internet. I’m talking about cellphones.  I’m talking about health records, and who’s gay and who’s not. And moreover, in a country born on a will to be free, what could be more fundamental than this?

Another WW episode, Debra Cahn's "The Supremes" also has much that the current real White House should study.  It is at least as relevant, if not way more so, than mindless babble about what "interest group" needs to "given" this "job."

The Supreme Court has a long way to go to recover from the Bush debacle it brought on. Neither Chief Justice Roberts, nor Justice Alito, both certainly qualified but selected by a ridiculous president chosen by a flawed process who employed equally bogus considerations in making his nomination, can help to restore it.  This President, the best we have had in a many, many years, can and, I am certain, will, help it to take that first step with whoever he nominates who will be, I am sure, selected for all the right reasons.

Originally posted to Barth on Sat May 02, 2009 at 07:07 PM PDT.

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Comment Preferences

  •  tip jar (6+ / 0-)
    Recommended by:
    sberel, ybruti, Navy Vet Terp, FG, sjbob, tapu dali
    I expect to receive few if any tips since the subject matter may be a bit boring and I have written nothing that will incite a revolution.

    Important whining and Red Sox stuff at

    by Barth on Sat May 02, 2009 at 07:22:06 PM PDT

    •  The immediate need in my opinion (0+ / 0-)

      Is the same need that FDR faced in 1937 - to preserve the legislative enactments that will hopefully be coming over the next few years.  I fear there are 4 justices who will strike down anything and everything, with Justice Kennedy ready to be persuaded.  

      National Health Insurance?  A taking of the property of the health insurance companies without due process of law, and therefore unconstitutional.  

      In this regard, a replacement for Justice Souter means nothing.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Sat May 02, 2009 at 07:38:05 PM PDT

      [ Parent ]

      •  wow (1+ / 0-)
        Recommended by:
        Navy Vet Terp

        I hope you are wrong in predicting the return of what used to be called "substantive due process"  but I see your point.  I am certain that the Chief Justice, Justice Alito, Justice Scalia (who, of course, also brings Justice Thomas with him) would be interested.  But though the so called "court packing" didn't work (it was not as crazy an idea as some make it out to be today, y'know), the Court ultimately gave in and it would be shocking to see those cases reversed.

        Important whining and Red Sox stuff at

        by Barth on Sat May 02, 2009 at 07:49:43 PM PDT

        [ Parent ]

      •  Climate Change. Nothing in the Constitution About (1+ / 0-)
        Recommended by:
        Navy Vet Terp

        governmental authority over planets.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sat May 02, 2009 at 07:50:19 PM PDT

        [ Parent ]

    •  Tipped (1+ / 0-)
      Recommended by:
      Jane Lew

      for being boring!

      183 waterboarding sessions in 31 days is a f*ing war crime!

      by tapu dali on Sat May 02, 2009 at 07:55:41 PM PDT

      [ Parent ]

  •  The 2 Old Conservatives Could Easily Last 20 Yrs. (0+ / 0-)

    Even with today's medicine, never mind what's coming in the next decade and more.

    There would have to be one or more unexpectable tragedies for Obama to have any impact on the balance.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat May 02, 2009 at 07:43:28 PM PDT

  •  I'd love to have seen Tribe on the court (1+ / 0-)
    Recommended by:
    Jane Lew

    but age matters. A lot. His window has closed, sadly.

    shit's gettin' way too complicated for me

    by mswaine on Sat May 02, 2009 at 08:09:42 PM PDT

    •  68???? (0+ / 0-)

      You have to be really young to be appointed to the Court now, because of Chief Justice Roberts and Justice Alito?  Wow.  Too bad.

      Neither Dean Sullivan or Professor Tribe, btw, has sat in any circuit of the Untied States Court of Appeals.

      (Isn't odd that the former chairman of the Judiciary Committee, now a Democrat, still calls that court the "Circuit Court" a name that was abandoned around 1951?)

      Important whining and Red Sox stuff at

      by Barth on Sun May 03, 2009 at 10:25:54 AM PDT

      [ Parent ]

      •  It's a lifetime appointment (0+ / 0-)

        The expected remaining lifetime is relevant. I'd like to see someone selected who has the experience for the job but lots of productive years ahead of them. Have we ever had someone as old as 68 appointed?

        shit's gettin' way too complicated for me

        by mswaine on Sun May 03, 2009 at 11:23:06 AM PDT

        [ Parent ]

        •  I guess not. But Justice Cardozo was 62` (0+ / 0-)

          when he was appointed in 1932, which is something of an equivalent and he did okay (though he only served for about 7 years.)

          I get it

          Important whining and Red Sox stuff at

          by Barth on Sun May 03, 2009 at 04:17:46 PM PDT

          [ Parent ]

  •  Actually I know that you are full of it (0+ / 0-)

    if you don't think that it makes a difference whether the judge is a woman or an old white catholic man when it comes to deciding law on cases such as abortion, for instance.

    Our court is not a gathering of solons - it is as thoroughly corrupt and political as the other two branches of government and it is already well stocked with straight Catholic rightwing males to last a generation.

    Meet the New Boss - same as the Old Boss - the Who

    by tiponeill on Sat May 02, 2009 at 09:29:27 PM PDT

    •  that's why tribe and sullivan are both not (0+ / 0-)

      what we want.

      Enough with the narrow legal scholars.  Alas, all the justices come out of the circuit courts.  The expertise in the US is far broader than that.  It makes a difference.

      Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

      by Guinho on Sat May 02, 2009 at 10:11:19 PM PDT

      [ Parent ]

    •  Viewing people by race or religion (0+ / 0-)

      is truly repulsive.

      Important whining and Red Sox stuff at

      by Barth on Sun May 03, 2009 at 04:18:31 AM PDT

      [ Parent ]

  •  a political branch... (0+ / 0-)

    As someone who does environmental law, I will say that the 4 conservatives will always find a way to defeat the environmental interest.  Doesn't matter howmuch the law is twisted to get there.

    Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

    by Guinho on Sat May 02, 2009 at 10:12:17 PM PDT

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