What needs to be said about the Supreme Court

[OrwellwasRight]

In all the drama about the filibusters, I think the Democratic leadership, the editorial pages, and the MSM have all missed a very important point.

And that point is that it is the Supreme Court's job to interpret the Constitution. And it can't do a good job interpreting the Constitution unless its members are learned, capable of having an open dialogue, and representative of the full spectrum of political and academic views.

The Republicans like to say that the American judiciary (the Supreme Court included) is somehow controlled by a left-wing cabal whose aim is to thwart the will of the people when it overturns measures that deny constitutional rights (e.g., when anti-abortion laws that seem to go too far under Roe v. Wade are enjoined from enforcement or when "protection of marriage" measures that strip rights away from homosexuals are overtunred).

These protests are wrong on several levels and we rarely hear a full discussion of any of those levels.

We rarely hear it said that YES, it is the judiciary's job to overturn the popular will when that will would deny basic rights and freedoms to members of our society. Without the judiciary to play that role, we are not safe from becoming a fascist nation.

We rarely hear a Republican forced to answer that the federal judiciary is primarily made up of reagan and Bush I nominees. There are, in fact, more Republican nominees than Carter/Clinton nominees (and that is due in no small part to the fact that the Republicans denied Clinton nominees the chacne to receive a floor vote). While we hear this fact mentioned, we never hear Grover Norquist or Focus on the Family have to explain, if the judiciary is so filled with Republicans, how can rail at it for being too liberal? There is no left-wing cabal.

Finally, and most importantly to me, is my main point, and that is that we do indeed need a full spectrum of views on the Supreme Court. We often hear it said by the MSM that the Supreme Court is split 5-4 between conservatives and liberals.

This 5-4 number masks a real truth, and that it that the court no longer has a far left wing. There are certain voices that are not heard and will never be heard in the Supreme Court's deliberations and decisions until we bring back a full spectrum of voices.

The Court is in fact represented this way;

1 Strong Liberal: Stevens

2 Center-Liberals: Breyer and Ginsburg

1 Centrist: Souter

2 Center-Conservatives: Kennedy and O'Connor

1 Strong Conservative: Rehnquist

2 Far Right Wing Reactionaries: Scalia and Thomas

While DUers may quibble about my political spectrum analysis, the underlying point is important. What we never talk about is the fact that the Court used to have a far-left wing (Brennan and Marshall) and that that left wing is no more. The Court is like a bird trying to fly with half its left wing missing: it simply can't. Decisions are being made without looking at the problem from all sides.

While I can't think of any issue at the moment about which I would see eye to eye with Scalia or Thomas, I honestly would not mind having them on the court if we also had a Marhsalll and Brennan wing. Then, while I am certain the Court would reach decisions I would rail against, at least I could believe that all views were aired and considered. At least I would have some sort of faith in the decisions. The justices are not supposed to be politicians, they are supposed to be analysts looking at the facts and the law, but if there are too many who come in with the predetermined notion that only the Federal Society view is legitimate, then the Court becomes a joke.

We need to stop treating the Court like an extension of the DLC and think that everything is OK if we get some centrists on there so long as a Democrat appointed them. It is not OK. We need some far left wingers to balance the far right wingers and we need to educate the public about the functions of the Court and the necessity for a wide variety of views, especailly by those who be interpreting the Constitution and sayig just what rights we do have under the Fourth Amendment (etc.).

Unless we expand the discussion about why the judiciary is important and what kind of members it needs, the nebulous middle will continue to be disenagaged about it, assuming (wrongly) that it is just about the appointment of pro-choice or anti-choice judges and no more. It is about so much more, and I think we must understand and communicate that more effectively.

PS: The deliberative nature of the court requires spectrum, but please do not misinterpret this rant as holding in any other context. I do not belive that airing battling press releases constitutes good reporting or is any kind of acceptable substitute for a search for the truth (a search which the media should engage in but seldom does).

[Hippo_Tron]

1. There was a West Wing episode that dealt with this

President Bartlett was given the opportunity to appoint a Supreme Court justice because one of the justices died. He wanted to appoint a woman who was liberal but he knew that the SCOTUS would not confirm her. Just for kicks he interviewed a conservative (basically someone with the same ideology as Scalia) for the position. Although he very much disagreed with his judicial philosophy, he liked the guy and thought that he would make a good justice. At the end of the Episode, the Chief Justice also steps down giving the President the opportunity to appoint two justices. He makes a deal with the senate that he gets to appoint the liberal as chief justice and the conservative as an associate justice.

Personally, I like this idea of balancing the court and I hate the fact that appointing judges has become so political. I almost think that we should ammend the constitution to take the power out of the hands of the President and have the SCOTUS fill its own vacancies. The overturning of SCOTUS decissions shouldn't hang in the balance of presidential elections.

[OrwellwasRight]

2. Like I always say, the West Wing is like Crack Cocaine for liberals.

It gives us an alternate universe where issues that should be discussed are discussed and outcomes that are actually "other thn fascist" occur.

I just tell my friends not to get so caught up in the alternate reality that they forget to fight the crazies who really run our country.

Interesting idea to have the Supreme Court fill its own vacancies. I doubt it could have worse outcomes than we get right now.

Everyone thinks that if Rehnquists retires or dies, the balance won't be shifted. But on the basis of Bush's other picks, I am confident he will pick someone to the right of Rehnquist and things will be worse. x(

[Hippo_Tron]

5. And in all honesty, Bartlett isn't all that far left

His administration and its policies are largely based on Clinton's, although it is more based on Clinton before he moved more to the center.

But as you say, the great thing about the Bartlett administration is that the president is just as intelligent if not more intelligent than his advisors. They formulate policy by sitting down in the oval office and have discussions about it and often they disagree.

It's a great break from this president who surrounds himself with "yes-men" who don't actually disagree with the president or with each other.

I remember an Episode this season where they were talking about renewable energy. They said that within so many years (I don't remember how many) we will have used up oil, which is why the administration is determined to come up with a good policy that invests in renewable energy. For a moment I said, ahh what a relief, we don't have to worry about renewable energy. Then I thought, OH FUCK, the real white house doesn't give a shit about renewable energy, they are entrenched in the pockets of oil companies.

Not to get too far off topic here, but I just long for a President that actually THINKS.

[gkhouston]

6. I remember that episode and the thing that we saw in that

conservative justice that I don't think we'd see in a Bush nominee is deep original thought and genuine respect for the law. His views were conservative but he actually cared about the Constitution and devoted serious thought to the intentions of the founders. I don't think so highly of almost any of Bush's nominees to the Federal bench.

[hang a left]

3. Excellent post.

However I doubt that we will see a SC apointee that represents the left side of the spectrum, unfortunately.

For those that are unfamiliar with the Federalist Society of which the original poster speaks, here is some information.

The Federalist Society: From Obscurity to Power
The Right-Wing Lawyers Who Are Shaping The Bush Administration's
Decisions On Legal Policies and Judicial Nominations
A Report by the People For the American Way Foundation
August 2001


Introduction

When President George W. Bush took office, many pundits predicted that his narrow margin of victory, his loss of the popular vote, and his moderate-sounding campaign would lead him to govern from the political center. Yet Bush began almost immediately to confound this prediction with a series of actions -- especially in the areas of family planning, the environment, and nominations -- that seemed to have been taken directly from the right wing's playbook. Within just a few months after the new president took office, pundits and political observers were eating their earlier words, now noting that Bush was building the "most conservative administration in modern times." <1> Right-wing groups have voiced great pleasure at President Bush's efforts to assemble a team that one ultra-conservative leader described as "more Reaganite than the Reagan administration." <2>

Early predictions of moderation proved wrong largely because observers failed to take into account a very important factor: President Bush's reliance for policy and staffing decisions on members of key right-wing organizations, notably the Federalist Society for Law and Public Policy Studies. When President Bush broke his campaign promise to regulate carbon dioxide emissions, that decision was based on a controversial report requested by one of the Society's founding members. <3> When right-wing leaders attacked the potential nomination of conservative Montana Governor Marc Racicot to be attorney general, it was a leading Federalist Society activist who wrote the memorandum that proved critical in torpedoing Racicot's hopes. <4> In the end, the post went instead to former Senator John Ashcroft, an extreme conservative and Society member. Today, many Society members are working in the White House counsel's office, at the top levels of the Department of Justice and in other high administration posts. <5>

Not yet 20 years old, the Federalist Society exerts a powerful influence. Despite its protestations that it is little more than a debating society, media from across the political spectrum agree that the organization carries tremendous clout. The Washington Times' Insight magazine identified the group as the "single most influential organization in the conservative legal world." <6> An article in Washington Monthly identified the Society as "quite simply the best-organized, best-funded, and most effective legal network operating in this country. . . . There is nothing like the Federalist Society on the left." <7>

The Society's status is reflected in the list of people who are members of, or otherwise affiliated with it. This list includes: Attorney General John Ashcroft; Department of Energy Secretary Spencer Abraham; Department of the Interior Secretary Gail Norton; Senator Orrin Hatch, the ranking Republican on the powerful Senate Judiciary Committee; Solicitor General Theodore Olson; former Independent Counsel Kenneth Starr; and former Christian Coalition President Donald Hodel, who also served as secretary of the Energy and Interior departments under President Reagan (see Appendices for a more extensive list). <8>

snip>



http://www.ratical.org/ratville/CAH/feddieSoc.html

[OrwellwasRight]

4. Thanks for the props and for adding the info on the Federalist Society.

And, regarding your comment:

"However I doubt that we will see a SC apointee that represents the left side of the spectrum, unfortunately. "

Sadly, I agree.

But I guess that was part of my motivation for the post. I think we (activists) should discuss the issue. And I think that we should discuss the fact that Clinton used his two SC appointments (as well as most of his District and Circuit appointments) to appoint center-leaning judges while I know of know centrists that Bush has nominated.

To me, this is one of Clinton's biggest failures (not that the Senate was all that cooperative, but he didn't even try to get a real liberal on the SC). I think we will pay the price for a long time that the "center" has moved so far to the right and few Democratic leaders are doing much less to point this out, much less stop it.