Legal Commentary

Elections Have Consequences

By Big Tent Democrat

There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate. - Barack Obama, 2005

Via DemfromCt, E.J. Dionne:

When George W. Bush was president, Senate Republicans now proposing to raise an ideological ruckus said Democrats were wrong to use judicial philosophy as a benchmark for confirming a nominee. If a president's picks were formally qualified and intelligent -- and both Chief Justice John Roberts and Associate Justice Samuel Alito were -- that should be enough, the Republicans said.

[MORE . . .]

. . . To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty. It's better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to "character," "qualifications" or "temperament."

Liberals, who (in my view, correctly) opposed Roberts and Alito on philosophical grounds, should thus not be hypocritical themselves and deny the conservatives' right to challenge a nominee's philosophy. On the contrary, liberals should welcome a real debate -- and win it.

The Judiciary, and the Supreme Court in particular, is a political branch. The Establishment, at least when Republicans control the White House, have long pretended it was otherwise.

The funny thing is Barack Obama told us in 2005 that if we want to have "liberal" Justices, we had to win elections (cited in this NYTimes article):

There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate.

Well President Obama, we have recaptured the Presidency and the Senate. Can we have our "liberal" Justices now?

Speaking for me only

Full post as published by TalkLeft on May 11, 2009 (boomark / email).