To no one’s great surprise, Justice John Paul Stevens is retiring from the bench this year; more uncertain, however, is whom Obama will nominate to replace him. On the heels of health-care reform and serving as prologue to the midterm elections in November, Obama’s nominee and his confirmation will prove to be an important test of his administration’s judicial philosophy and, of course, the Democratic leadership’s political will.
Whom might the President nominate? Although the White House reports it is considering 10 names, The New York Times notes three frontrunners: D.C. Circuit Judge Merrick Garland, 7th Circuit Judge and University of Chicago Law Professor Diane Wood, and Solicitor General Elena Kagan. The Times reasons that Garland, being the most conservative contender, is the safest choice, while Wood, being the most liberal, is the least confirmable; Kagan sits between the two.
I hesitate to put very much stock in The Times’s decision to feature these three candidates as the supposed frontrunners, though, since there seems to be no reasoning behind the newspaper’s decision to highlight them. It is more likely that the White House just leaked these names in order to appease whichever constituency will be dissatisfied by Obama’s eventual choice: For example, if he ends up nominating a moderate or conservative judge, progressives can cling to the fact that they were represented on the short list.
Unfortunately, the administration’s previous illiberal legal positions make this hypothesis sadly plausible, and a moderate or conservative nominee is thus most likely. On the issue of executive power, Obama has asserted the power to preventatively detain those “who cannot be prosecuted for past crimes,” but who are considered dangerous enough to merit imprisonment, without traditional court oversight. And on the social front, his administration has used weather-worn conservative arguments to fight equal marriage rights from gay couples in the courts. Consider that if Obama nominates a decidedly liberal candidate, she may rule against his administration’s arguments from the bench. No doubt this consideration enters his decision-making, just as it crossed President Bush’s mind in the height of executive excesses during the “War on Terror.” (Bush nominated Harriet Miers.)
Equally worrisome is the Obama administration’s sluggishness in filling lower court vacancies: Out of 858 appeals and district court judgeships, 103 sit unfilled. A group of law professors, including the University of Chicago’s Geoffrey Stone, recently wrote to Obama about their “growing concern that [his] Administration must act with far more energy and dispatch in the vitally important task of nominating and confirming federal judges.” Despite GOP obstructionism in the Senate, they warned, “the successful management of the confirmation process is critical to the nation and, ultimately, is the White House’s responsibility.” (For comparison, Stone and his brethren point to the fact that Bush had appointed 89 judges at the same point in his presidency that Obama had only successfully appointed 43.)
It may be too far to say that these gloomy observations suggest that Obama is uninterested in the health of the judiciary: After all, Obama may simply prioritize differently. Replacing Stevens with a bona fide liberal is not important because of some contrived scheme to achieve parity between liberals and conservatives in the judiciary. For example, when 9th Circuit Judge Jay Bybee, known for his role in the Bush Era torture memos, was nominated and confirmed to the bench in 2003, Senator Charles Schumer (D-NY) explained that “[t]he 9th Circuit is by far the most liberal court in the country. . .and therefore. . .Bybee will provide some balance.” Rather, Stevens must be replaced by a bona fide liberal because the Supreme Court has become reactionary and must be tempered in several important future cases.
Citizens United certainly comes to mind. Whatever response Democratic legislators manage to pass to salvage regulation of corporate political expenditures, if they do so at all, it will undoubtedly meet court review. Equally important on future dockets is Perry v. Schwarzenegger, a challenge to California’s Proposition 8 last year. It will be appealed to the Supreme Court, where the justices’ ruling may set back—or advance—the marriage equality movement a decade. The Supreme Court will also hear conservatives’ eventual challenge to the constitutionality of the Democrats’ health-care reform package.
Heralding trumpets notwithstanding, Obama’s election and its concomitant Democratic legislative majority did not automatically mean a return to the rule of law. Even if he were wholly concerned with the legality of his administration’s policies—a fantasy, really—his judicial nominations would be among his most important presidential duties. But, since he has instead continued the lawbreaking of the Bush era, the courts are his only impediment—and thus are our last resort. The seat warmed by John Paul Stevens and William Douglas deserves a legitimate liberal, not one who will roll over at whatever executive-privilege claim the Obama administration argues is legal.
—Andrew Thornton is a third-year in the College majoring in Philosophy.