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Dahlia Lithwick from Slate has an absolutely chilling article in this week's cover package, "What if Obama Loses," in Washington Monthly.  Her contention, and I find this very difficult to argue with, is that W appointed as many as one-third of the appeals court judges sitting on the bench now, and that four years of a Republican president will tilt the courts to the right for at least the next generation and, since I'm 62, probably for the rest of my life.  Details below.

The most alarming statistic in the article is the finding in a 2008 study, that four of the five most conservative judges of the 43 who have populated the court since 1937 sit on the Supreme Court bench right now (yes, Clarence Thomas is #1), and the swing vote on the Court, Anthony Kennedy, is TENTH (as in actually conservative, but with principles). The two most likely judges to retire between 2012 and 2016 are Kennedy and Ruth Bader Ginsberg, which means a 6-3 conservative majority if a Republican is president for the foreseeable future.

Lithwick also takes Obama to task for not looking at the lower courts with the intensity that W did, bit she does observe that it's not entirely his fault, although the process has had seriously negative effects:

Republicans have used Senate rules so effectively to block Obama judges that the judicial vacancy rate currently stands at eighty-four vacancies, with thirty of those designated “judicial emergencies” based on courts’ inability to manage caseloads. Filibusters, holds, and other arcane Senate rules have brought the system to the point where civil litigants may wait years to get into court. And the unprecedented waste of time that results from GOP obstruction of Obama judges has led some of the most interesting and thoughtful jurists, most famously California’s Goodwin Liu, to withdraw their names from contention.

Yes, she sees an intensity gap between Democrats and Republicans.  Every member of the Republican goat rodeo has had something negative to say about the courts, from Rick Santorum's threat to do away with the Ninth Circuit  (too consistently liberal) to Newt Gingrich's imitation of Andrew Jackson with regard to Worcester v Georgia, which said the Cherokees were indeed a sovereign nation, and which Jackson decided to ignore.

In other words, regardless of what objections we may have to some of our president's actions, if we want to see a country in 20 years that works the way it does now, if not better, we CANNOT sit on our hands. Obama offers the best alternative for making the courts even more progressive than they are now, especially if we can elect more and better Democrats to the Senate.

2:31 PM PT: My first diary on the rec list!  Thank you all.

5:43 PM PT: Also my first crossposted to two groups I don't belong to!


9:37 PM PT: I'm going to go do some work on the paper I'm presenting in Melbourne (yes, Australia) on Friday, and I'll check back in tomorrow morning.  Try not to be mean to each other. (yes, obviously, this is my first high impact post, and no, I didn't expect it to be this involving!)

Originally posted to Dave in Northridge on Sat Jan 28, 2012 at 12:59 PM PST.

Also republished by I Vote for Democrats, The Federation, Jews For President Obama, and Moose On The Loose.

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