Wednesday, February 17, 2016

Justice Obama? McConnell's blocking strategy could be fantastic news


Well it's a thought anyway.  If conservative Justice Antonin Scalia's death has plunged America into a potential constitutional crisis and more crie de coeurs about whether its system of government is fit for purpose, there is still some mileage to be made by beleaguered Democrats.

In short, Scalia was a conservative Justice - rigorously conservative actually - whose replacement by anyone even marginally to his left could initiate a change in the political direction of the Court.  And make no mistake, political direction is what it is all about.  This court has long been political, whether it was as an activist liberal court under Earl Warren, or the Republican leaning Court that appointed its political fellow traveller, George W Bush, as president in Bush v Gore in 2000.

So its opinions may be beautifully worded and legally argued to the nth degree, but they have a huge political impact and the Justices all know it.

So does President Obama, the appointee to date of two Justices - each of whom replaced a retiring liberal.  In his reflections on what makes a good Justice, one of Obama's least legal but most impressive citations was that of empathy. As Slate writer Dahlia Lithwick notes in a fascinating article, Obama understood that justice is not some remote, detached concept but actually affects people's lives.  The former law professor commented that:

I want my justice to understand that part of the role of the court is to look out for the people who don’t have political power. The people who are on the outside. The people who aren’t represented. The people who don’t have a lot of money; who don’t have connections. That’s the role of the court.

Not something, as Lithwick points out, that could ever have been considered the abiding value of the late Justice Scalia.

The battle to replace Scalia is potentially undermining for America's system of government, and showcases the level of polarisation that country's politics are now delivering.  Republican Senate Majority Leader Mitch McConnell is quite clear that he doesn't see any need to appoint a new Justice until America has a new president.  He is way out of line constitutionally, but well in line in a party that is so rigorously partisan that it has no memory of what it was once like to legislate and govern in the national interest.  McConnell and his allies on the Hill make Richard Nixon look like a model of bi-partisan leadership.

But could the Republicans' determination to co-opt the Supreme Court into their political battles backfire?  Suppose - no mean supposition this - that the Republicans do not win back the white House and it goes to either Clinton or, more dangerously for them, Sanders?  Suppose the larger than usual number of voters who always tend to come out for presidential elections take against the Republicans enough to push the Senate back into Democratic hands?  It's not unusual for it to change hands in the presidential election years after all.

What price then Senator McConnell's bullish strategy?  A Democratic president, and a recently out of work law professor who has just served the nation as president.  Could Obama be the retaliatory nominee for the Supreme Court under a President Clinton or Sanders?  After all, former president William Howard Taft went on to serve with distinction as a Justice.  And Clinton, no matter how spontaneously, embraced the idea when a voter in Iowa suggested it.

It would be poetic justice indeed if president Obama became Justice Obama because the Republicans chose to delay appointing a Supreme Court replacement for a year after a vacancy arose.  Oh please make it happen!



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