 I am of the belief that Republican presidents view Supreme Court nominations as a political opportunity while their Democratic counterparts view it as more of a political challenge.
When Supreme Court Justice John Paul Stevens announced his much-anticipated retirement, the first name that came to my mind was Secretary of State Hillary Clinton. But the White House quickly ended speculation this week of a possible Clinton nomination when press secretary Robert Gibbs stated that President Obama is going to keep her as his secretary of state. The idea of a Clinton nomination to the Supreme Court, though debunked by the White House, continues to make sense. It would be an historic evolution from First Lady to legislator to diplomat to the nation’s highest court. Clinton would be a “political” nomination in the tradition of former President William Howard Taft and former California Governor, Earl Warren—both served as Chief Justice. Those whose sole purpose in life is to parse the opinions of potential judges would find the Clinton nomination quite frustrating because political appointments tend not to have a long legal paper trail. The other benefit to nominating Clinton, as she stated during her presidential campaign, few in public life have been vetted more. Moreover, Clinton already stated that she doubts whether she could serve eight years as secretary of state, assuming Obama was reelected. As a former member of the U.S. Senate, I doubt the confirmation process would be difficult. This is an important consideration given this is a mid-term election year—a rather ironic twist given that we are not accustom to hearing the name Clinton used to quell potential distractions. It seems not only is Clinton not under consideration it is doubtful the president will put forth a name that risks the possibility of being irretrievably tainted by the liberal brush. Conservatives have done a splendid job in labeling their side as strict constructionist, suggesting their judges follow the Constitution, while labeling the other side as “activist” judges, suggesting they legislate from the bench—making it up as they go along. But it doesn’t take much to quickly conclude conservative justices are also guilty of a little “activism” from time to time. It is difficult to claim the conservative court’s ruing in Bush v. Gore was anything other than activism run amok, especially when one considers this landmark case that decided the presidency cannot be used as precedent.
What about the recent Citizen United v. Federal Election Commission ruling? This decision allows corporations and labor unions to participate in the political process in a more direct way placing its constitutional rights to political speech on par with the individual. But any ruling that enhances the speech of corporations and labor unions diminishes the speech of the individual. In the Citizen United decision, the court overruled 100 years of liberal and conservative decisions that banned corporate expenditures. How is that not judicial activism? Was it not the liberal Supreme Court in Brown v. Board of Education that ruled against de jure segregation? Was it Gideon v. Wainwright the Supreme Court unanimously ruled that state courts are required under the 6th Amendment to provide counsel in criminal cases for defendants who are unable to afford their own attorneys? When we consider liberal courts decided that one must have their Miranda rights read to them at the time of arrest and struck down race-based restrictions for marriage, are we not also prepared to say the country has been better for this so-called activism? Because the perception of activist judges is one that is inherently liberal, Republicans have the opportunity to appoint judges that will further their agenda, while Democrats are challenged to appoint judges from the vaunted “mainstream.” This is why the Clinton nomination made sense; it’s not game changer. Assuming the president does nominates someone left of center, the court will maintain its center/right, 5-4 majority. It is highly unlikely that any Democratic president in the current political climate would be so bold as to nominate someone viewed as the philosophical antithesis of conservative Justices Roberts and Alito, let alone Scalia or Thomas. So this pending nomination in all likelihood will be a safe one. But let’s keep in mind that it is merely the preliminary match. Should, in the unlikely event, one of the five conservative justices leave the court during the Obama presidency that indeed would be the main event. I wonder if pay-per-view will carry it.
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