Obama’s Turn: Supreme Court-picking Time

It’s that time of the presidency again; it’s Supreme Court of the United States (SCOTUS)-picking time. After Associate Justice David Souter decided that his stay on the Supreme Court would end in June, President Barack Obama is now left with the honorable task of picking a new justice to anger right-wing Kool-Aid drinkers.

This shouldn’t be hard because they’re already building up a campaign to go against anybody whom Obama picks. Conservatives are even going after what Obama eats because all in all, Obama hates America. For example, he uses Dijon mustard on his hamburgers instead of ketchup. I, personally, happen to dip my cheeseburgers in ketchup, which is kind of like waterboarding except delicious.

The debate about what type of Supreme Court justice Obama should pick is an important one though. Even conservatives realize that a liberal will replace a liberal on the court. Thus, the whole dynamic of the court really won’t change, at least according to conventional wisdom.

The truth is, however, that today’s “liberals” on the court, such as Souter, Stephen Breyer, John Paul Stevens and to some extent Ruth Bader Ginsburg, aren’t really liberals. They are at best moderates who lean left. It is just that the court as a whole has turned to the right, slowly with the Warren Earl Burger court and then with much acceleration under the William Rehnquist and John Roberts’ court. Even J.P. Stevens, the “liberal” leader, admits that he’s not a liberal, as he once said, “I think as part of my general politics, I’m pretty darn conservative.” Thus, if Obama wants to shape the court with his judicial bloc, then he has to appoint an actual liberal to compete with the steadfast conservatives on the court.

One might ask, “What does it mean to compete against the conservative bloc?”

Well, for awhile now conservatives have relied on Justice Antonin Scalia as their powerhouse of ideas for judicial temperament, with Justice Clarence Thomas tagging along. The liberal bloc now needs a leader who will articulate their views of a living constitution in the same way Justice William Brennan did in the 1960s and 1970s. In addition to Justice Brennan being the representative of liberalism on the Supreme Court, he was also able to form factions and convince other members of the court to side with him on cases. While it seems unlikely for any of the conservatives to side with the “liberals” on important cases, it is feasible to get the swing vote, Justice Kennedy, to side with them more often.

The political debate, however, does not seem to be focusing on what kind of liberal Obama is going to pick, but what is the make-up of that person (i.e. race and gender). Conventional wisdom says that the pick will probably be a woman and a minority, thus a “two-fer.” Many people in the media are looking at Sonia Sotomayor as Obama’s possible pick. I don’t know much about her other than the fact that she is a woman (check) and a Latina (double check). She has also been described as a moderate (damn).

There is some argument to be made that Obama should nominate a safe choice. Obama should pick a moderate whom the conservatives will nod and smile at; however, it’s never going to happen.

The argument goes like this: Obama has a lot of political capital and shouldn’t waste it on a Supreme Court nominee. He needs to pass health care reforms, plus Obama is supposed to be a uniter and not a divider. But this argument doesn’t hold up because it would be applying a double standard to say that President George W. Bush can put conservatives on the court that will definitely shape the court, but Obama has to appoint liberal-lites. Obama may get up to three Supreme Court appointments if he is lucky. He has the ability to shape the court for a long time with young liberal appointments, even if it risks some of his built-up capital. But it is necessary that important issues, like gay marriage, are decided justly with liberty and equality in mind. And remember, Bush was able to push two stalwart conservative justices with no political capital at all. Talk about being proficient.

Jaye Estrada is a third-year biological sciences and political science double-major. He can be reached at estradaj@uci.edu.