Wednesday, April 21, 2010

Partisanship on the Supreme Court

The branch of government that should be the least consumed with party labels is the judiciary.  Once appointed to their lifetime tenured appointments, federal judges should hold themselves above politics.  I recognize that judges take office with well-established ideological orientations that will influence their decisions, but judges, unlike say, members of Congress, cannot be directly influenced by party politics.  In addition, federal judges are supposed to stay out of electoral politics while in office.  And most importantly, judges are bound to decide cases according to the law, not according to their political preferences.  (Again recognizing of course that the higher the judge's level, the more opportunity there is for legal decisions to be influenced by philosophical and political considerations.  The statutory and constitutional questions accepted by the Supreme Court tend to leave a lot of room for interpretation.)

When Barack Obama came into office, there were seven Republicans and two Democrats on the Supreme Court.  But these party labels were not seen as terribly significant because, while tilted in a fairly conservative direction, the nine justices still represented a spectrum of views, and two of the Republicans tended to side with the more "liberal" side of the Court.  With the retirement of first Justice Souter, then Justice Stevens, we see further evidence of the extinction of such Republican moderates.  And unfortunately, with the appointment of a replacement for Justice Stevens, even if he were to be replaced by a Democrat who is more conservative than he is, which is quite possible, the Supreme Court is likely to be perceived in a more partisan manner.  That is because we are soon likely to have four Democrats and five Republicans on the Supreme Court, and we are likely to see quite a few 5-4 decisions breaking down on partisan lines in politically sensitive cases.  (One might wish for the appointment of a liberal Republican to avoid this result, but it is difficult to think of anyone who fits the bill.)  Thus, while the ideological balance of the Court will not be changed dramatically by President Obama's first two appointments, the Court may take on the appearance of a more partisan body than previously.  It would probably take a concerted effort by most or all of the nine justices to avoid that appearance of partisanship, and it would probably be in the interest of the Court's reputation for all of the justices to make such an effort.  Otherwise we are likely to see a real political firestorm if President Obama ever has the opportunity to appoint a replacement for any of the remaining five Republicans on the Court.

On the other hand, a good argument can be made that what is really needed on the Court at this time is a fiercely liberal voice, in the tradition of a Brennan or Marshall or Douglas, something the Court has not had for some time.  Ideally, the Court probably should contain at least one Justice as far to the left as respectable legal opinion allows, to counter-balance the strong voices on the right that we already have, and to keep all of the Justices intellectually honest by forcing them to consider arguments on both the left and right ends of the spectrum.  Since Senate Republicans have already signaled that they might attempt to filibuster whomever the President appoints, now might be a good time to challenge the Senate to consider a powerful liberal voice, reserving a more moderate candidate for a potential third appointment.   Since the Senate will likely respond to his appointment in a partisan manner, and the Court will probably take on a more partisan appearance no matter who is appointed, the President should have a great deal of freedom to appoint the candidate he feels would be best for the Court in the long run.

(retiring Justice John Paul Stevens)


  1. The appointment of the next candidate should be couched as a judge with a strong track record of holding corporate interests accountable, unlike the recent Republican appointments. This is very much on the mind of the American public, and not something that they feel Obams is particularly strong on in light of TARP. It would be consistent with Obama's position on Citizens United and the Goldman Sachs fiasco. My expectation is that such a judge would be a strong liberal, but that is beside the point.

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