Sunday, July 20, 2008

Our Elderly and Increasingly Scary Supreme Court

Politics has broken my heart too many times in the last decade to consider Obama a sure thing. But what do we have to consider in the case that he doesn't win? Having Congress and the White House would be great for future of progressive liberalism, but what about the Supreme Court, too?

The Washington Post today has an article on the hopes and dreams of Democrats to fill the Supreme Court with more liberal appointees, "Some Legal Activists Have Hearts Set on 'True Liberal'". It's true that if McCain wins [shudder], the court will be firmly in the 5/9 conservative territory. Additionally, Democrats on the court tend to be older and one could assume that they will consequently retire sooner, leaving more spots for conservatives to potentially fill.

Below is a chart comparing age (at the start of the next president's first term) and overall conservative voting record (from Rational Judicial Behavior: A Statistical Study). Albeit not a perfect correlation, it appears that the younger the Justice, the more conservatively they vote. The implication is that they will also have a longer future period of influence.

Moreover, this court currently holds 4/5 of the most conservative justices since 1937, according to Rational Judicial Behavior: A Statistical Study, a very thorough study by Landes and Posner, both of the University of Chicago Law School. Geoffrey Stone, a law professor at the same institution said:
It is a court with no true liberal on it, the most conservative court in 75 years. What we call liberals on this court are moderates, or moderate liberals, if you want to get refined about it.
From the Landes and Posner study Clarence Thomas ranks as the most conservative justice since 1937, while the first African American to serve, Thurgood Marshall, was ranked the most liberal. Using the Landes and Posner study, one can also analyze civil liberties voting records, again presented as fraction of conservative votes. Not surprisingly, Stevens, Ginsburg, Breyer, and Souter are the only ones who vote liberally >50% of the time. Kennedy, the "independent", votes conservatively on civil liberty issues >70% of the time.

For those of you that only get your news from USA Today, I have also presented this same information in Bill O'Reilly info-graphic form.

Some Democrats are formulating a Supreme Court dream team already. Hillary's name was suggested in a op-ed in the Washington Post back in May by James Andrew Miller. He wrote:
Obama could also trust that Clinton would maintain her image as a fighter after arriving at the court. Her tenacity has never been more apparent. President Obama would engender praise (at least from Democrats) at the prospect of Hillary going toe to toe with Clarence Thomas, Antonin Scalia and Samuel Alito. Clinton's gumption and determination might make her one of the most powerful forces ever on the court, particularly when it comes to swaying other justices when the court is closely divided.
As a fervent Hillary supporter, I think that this is a great idea, but I am not sure we can count on Obama for her nomination. From the Washington Post article:

Obama himself has been opaque and even contradictory about his criteria for a justice. He voted against both Roberts and Alito, and has said he sees Ginsburg and Justices Stephen G. Breyer and David H. Souter as the kinds of "sensible" justices he would favor.

Yet, as the court's term ended last month, he praised the court's decision in support of an individual right to gun ownership that struck down the District of Columbia's handgun ban, a decision in which Roberts and Alito were in the majority and liberals dissented.

It comes down to my simple demands:
  1. Elect Obama.
  2. Nominate a true liberal, who is also really young or has the ability to live forever.


Habladora said...

Wow, Loup... awesome post! I support your demands. As an Obama supporter from the first, I think we can trust him to nominate another Ginsburg-like Justice (although his reaction to the gun ruling surprised me too). I love the idea of putting Hillary Clinton on the Court - that would be... perfect. I hadn't heard this idea floated before, only talk of putting Bill on the court, which, while a good idea too, isn't as perfect as the idea of Justice Hillary.

Mächtige Maus said...

This is an excellent post. Most thought provoking. However, I think I must be a bit confused on the push for a Clinton on the Supreme Court. I seem to be missing how Hillary (or Bill) could possibly be considered valid options as a Justice.

Yes, both of them clearly come from a law background, but neither of them have ever served as a judge. while it is true that a President may nominate anyone for the position since there are no actual qualification requirements, I should think that a nomination for either Clinton would be a wasted effort. I would prefer someone both with the ability to provide a liberal interpretation of the Constitution and serve in a judicial manner based upon prior experience.

Despite my questioning, I will hop on board with your two simple demands.

Anonymous said...

Currently, all Supreme Court justices were judges prior to their appointment, although this has not always been true. The Op-ed has the point that Hillary would be relatively easy to get through Congress. Moreover, her shit has all been aired. And just think of what 'we' tolerated with Thomas.

Mächtige Maus said...

Do you really think she'd be easy to get through Congress? To me, it seems like she would be a wasted selection that would do nothing more than delay the process. Maybe I am underestimating her.

Oh, Loup, I forgot to add this sentence following "This is an excellent post..." Great use of graphic data to support the piece. What, you think you are scientist or something? :)

Habladora said...

I see the wisdom in wanting Justices who have a deep understanding of the law. This is the first time in history, though, where all nine sitting Justices have been judges in the past - and when Brown v. Board was decided, I believe NONE of the Justices were judges before their appointments. Sandra Day O'Conner wasn't a judge or even a lawyer before becoming a Supreme Court Justice, so I don't think that it is a necessary qualification for the post.

I do think H.C. would be easy to vote-in, since she is widely seen as both intelligent and committed to social justice. She is also a moderate, though, as are Ginsburg, Souter, Breyer, Stevens, and Kennedy. There are some who might argue true liberalism has disappeared from the court.

Agincourt said...

Okay, I like the idea of Hillary as a Justice...somewhat. And perhaps she could be pushed through, but I have my doubts, like Maus. I feel sure things will come out of the woodwork to sabotage the process.

As for S. Day O'Connor, actually she was a lawyer, and graduated from Stanford law school. True, as a woman due to what I assume was gender bias, she certainly did have problems being a 'practicing' lawyer. Law firms were not clamoring to hire women...

At any rate, she was actually elected as trial judge before she was appointed to the AZ Court of Appeals. After a fairly short stint at that she was appointed to Supreme Court.

I think an in depth knowledge of the law must certainly be as integral as say... having an M.D. if you are going to be appointed Surgeon General? Of course I say that without knowing the actual requirements or the history of that position.

Not that I'm comparing the lasting effects of one term of of one surgeon general (who I believe 'serves at the pleasure' as the saying goes) to the lasting effects of the 'position for life' aspect of the Supreme Court Justice. I very clearly remember telling my..uh, increasingly conservative father that the major reason I was upset that Bush had been elected (and re-elected) was that he was going to get to appoint 2 or 3 judges. And THAT was going to have a much longer lasting effect.

Anonymous said...

There are so many reasons I am mad that Bush was elected and re-elected. The Supreme Court nominations was just the icing on a very evil and unjust cake.