Obama's first term will move the Supreme Court to the right

[Kurt_and_Hunter]

It's not entirely his fault. It's mostly just the realities of the court, and not purely random realities.

Justices tend to stay around until their Party is in the White House. (Remember Sandra Day O'Connor's' accidental truth-telling in 2000? She was at an election night party and when Florida was called for Gore early on she blurted out, in frustration, that now she wouldn't be able to retire.)

Sotamayor was only a slight shift (and one can argue about whether a shift right or left... depends on the issue) but it is hard to overstate how liberal Stevens and Ginsberg are.

There is no way their replacements (solid moderate liberal-leaning type justices) will not represent moves to the right.

Partially it's modern politics. And partially it's that in his heart of hearts Obama probably thinks Ginsberg and Stevens are too liberal.

(He had to be talked out of voting for Roberts.)

I would guess that Obama will nominate replacements in the Breyer mold.

That is not terrible... a court of nine Breyers would be tolerable.

But we won't have nine Breyers, or even nine Kennedys. There will be ZERO very-liberal types and four bust-out wing-nuts.

If Obama manages to be re-elected then there's a possibility of replacing a Scalia, Thomas or Kennedy and that would actually change things.

[ProSense]

1. What a ridiculous spin

The court was to the right, but adding Sotamayor moves it more to the right?

Ludicrous.

[Name removed]

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[WI_DEM]

2. I doubt that he thinks that Obama thinks Ginsberg and Stevens are too liberal

they are moderately liberal but certainly not as liberal as some members of the Warren Court were. And so far his one court selection has pretty much been with the "liberal side" of the court.

[WI_DEM]

6. P.S. I actually think we should hope that Ginsberg and Stevens retire soon

and preferably this year. Especially Stevens at 89 years old. Why? The make up of the Senate next year may not favor the Democrats. It's best to have the Senate under Dem control when Obama makes his next nominations otherwise he may have to select somebody who isn't as liberal as we would like.

[Kurt_and_Hunter]

8. Well, on the one hand 59 is better than 55 or 53

But on the other hand, an election year might not be most conducive to liberal nominees.

One could argue either side, I guess.

[Jennicut]

14. Yup. Time for one of them to retire soon.

[Cirque du So-What]

3. If *I* were president

I would increase the number of SC justices to 11 - 13 if that didn't work. FDR threatened similar action back when conservatroids were gumming-up the works, and the same thing is now occurring. If anything, the judicial branch is even more RW than in FDR's day, however, so a blunt instrument is required to restore a semblance of balance.

[WI_DEM]

5. Actually at the time the court packing was defeated FDR had a 76-17 majority in the Senate

it wasn't popular with liberals or conservatives of the time. As it turned out FDR ended up redefining the court anyway.

[Cirque du So-What]

7. Yes, I'm familiar with the history

I referred to FDR only in a tangential way. AFAIK, it was the only time increasing the number of SC justices was ever considered. I just needed to pin my suggestion to some sort of historical precedent, seeing that many people are unaware that the president retains the power to set the number of SC justices, which is not specified in the Constitution. It's an idea whose time has come, in my opinion. The legacy of increasing the number of SC justices would make it harder for some future conservatroid president to attempt stacking the court back to the state in which we currently find it.

[onenote]

21. I'm not sure you are familiar with the history

The president doesn't have the power to change the size of the court. It takes legislation and exactly how do you think such legislation could get through Congress? FDR failed and he had a 76-16 majority (with four third party/independent senators who were generally sympathetic to FDR's agenda). Yet 70 senators voted AGAINST the FDR plan.

Attempting to increase the size of the court as a political matter would blow up in the faces of the Democrats just as it blew up in the face of FDR, who had a much much stronger hand to play and still got his ass royally kicked. Heck, FDR was able to argue (although it was just a cover for his real intent) that he didn't get to nominate a single justice for his entire first term. Obama already has named one, and is likely to have a second before his second year in office is up. And FDR

Those are the facts. I am open to hearing how as a practical political matter you think the size of the SCOTUS (unchanged since it was made smaller in the mid 19th century) could be increased today without the problems that FDR ran into. Keep in mind, of course, that anyone trying to change the size of the court today would have one problem FDR couldn't have had -- the historical fact that FDR tried it and failed.

[Nicholas D Wolfwood]

18. And it wasn't Republicans giving him the hard time either.

One of them even served in his vaunted brain trust.

[BeyondGeography]

9. And McCain's first term would have moved it even further to the right

:dunce:

[Kurt_and_Hunter]

12. Thanks for the thoughtful reply. We are all wiser for it.

[BeyondGeography]

13. Your Olympian powers of wisdom and insight have failed you this time around

or maybe it's that old problem of articulation that did you in.

[Kurt_and_Hunter]

17. Please elucidate.

Is your thesis that Obama will appoint two justices more liberal than Stevens and Ginsberg?

If not, what the f'k are you talking about?

The circle-jerk reasoning style of contradicting 2+2=4 by noting that 2+6=8 has lost its charm.

The SCOTUS will, in fact, have moved rightward between 2009 and 2013 unless some medical crisis strikes one of the four pathological conservatives.

Do you dispute that?

[BeyondGeography]

27. Oh, just get to the fucking point already

You basically imply that Obama lacks the ideological courage to do what his Republican predecessors have done, which is to nominate extremists. Right? How that amounts to "moving the court to the Right" is Sophistry 101 on your part. Stevens and Ginsberg are liberals, not extremists. If he replaces them with justices such as Sotomayor, do you think our opponents will see the Court as moving rightward?

[Kurt_and_Hunter]

29. Yes, I am going to marry a carrot.

[onenote]

31. a question: do you think the court will move rightward enough to impact the outcome of any cases?

In all likelihood (but obviously no one can know for certain .. after all I doubt Ford and his advisors knew that Stevens would turn out to be as liberal a justice as he turned out to be), you are right that Ginsburg and Stevens will be replaced by justices who are not as liberal as they are. But the question I have is whether this difference, which is more likely to be a matter of degree than kind, will actually impact the outcome of any cases? Are there cases where Ginsburg and Stevens were on the winning side that you think will come out differently because of the votes of replacements named to the court by Obama for those two justices?

[harkadog]

33. And if Hitler were cloned he would move it even further than McCain.

What is you point? It has nothing to do with the OP.

[Name removed]

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[Name removed]

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[impik]

15. Rrrrright. And some cats will be killed crossing the road

Must be so sad to be filled with so much hate towards a Democratic president, who's also a great man.

[Name removed]

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[Nicholas D Wolfwood]

19. You fail to understand the concept of context.

Taken in and of itself, this post is not hate filled.

Taken in the concept that you post something similar multiple times each and every day, it is hate filled. Death by a million paper cuts still results in death, no matter how small the individual wounds may be.

[impik]

20. Man, at least try not to be so predictable

[Sebastian Doyle]

22. Here's my fear with Stevens retirement

We all know that President Obama is a fan of "bipartisanship" and has somehow convinced himself that Republicans are capable of "good ideas", despite the fact that we haven't seen a "good idea" from a Republican since.... well, since Ford nominated Stevens, actually.

But he was, in fact, a Republican nominee. So what if Obama, in accordance with his "bipartisan" fairytale, feels compelled to nominate a Republican to replace him? There will be a lot of people telling him he should do exactly that, and don't be surprised if some of them claim to be "Democrats".

Believe me, if there were another "Republican" like Stevens out there, I'd be fine with it. But we all know such a thing no longer exists in that party.

[Peacetrain]

23. Oh for the love of GOD, Sotomayor is a right winger? I do not think so..

[Name removed]

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[Alexander]

25. Sotomayor challenges 100 years of corporate personhood.

That's a stance that is way to the left of every single justice currently on the court.

Maybe you should read harder and write less.

[harkadog]

35. Other than the throwaway headline where are you getting that?

If Sotomayor actually believes that, the Citizens United case would have been a perfect case to express it. None of the nine Justices 'challenged' the concept of corporate personhood in the decision. Stevens does not challenge it in the dissent. If Sotomayer even remotely believed that she could have written a separate dissent but she didn't. This case would have been the perfect vehicle for it.

[Alexander]

37. Here.

http://online.wsj.com/article/SB125314088285517643.html

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with... a creature of state law with human characteristics."

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.

"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."

[harkadog]

38. Yes I know what she said in oral arguments on the case.

But she apparently was convinced that she was wrong because she signed Steven's dissent which affirmed corporate personhood. As I said Citizens United would have been the perfect case to attack corporate personhood if they were so inclined. Nobody did.

[Alexander]

40. There are any number of reasons why she would sign on to the dissent.

Perhaps she hadn't thought it through enough to write her own dissent about the matter.

Perhaps she doesn't want to rock the boat too early because it might hinder any other appointments Obama might make to the Supreme Court (like replacing Stevens).

You could very well be right, but there are other possibilities, and I think the fact that she brought it up at all is a promising sign.

[Peacetrain]

32. Oh GOD iit must be good to be you..

You are right I did read it wrong.. I was influenced by the header of your OP and misread what you were saying..

[Prism]

26. I've liked the President's nominations so far

His judicial nominations are one of the few bright points in the administration for me.

[Hippo_Tron]

28. Do you have a substantive argument as to how Sotamayor is to the right of Ginsburg and Stevens?

Or as to how Obama thinks Ginsburg and Stevens are too liberal?

[Name removed]

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[vaberella]

41. ...

:rofl: Oh my God!!!

[grantcart]

34. You have fallen into a trap of determining a justice's left/right impact as how they vote

Actually this is second to the more critical issue of how they can help form coalitions. For that reason William Douglas, as brilliant and entertaining as he was didn't have the impact other justices have.

Justice Sotomayor appears to be very strong on this point and if she is a strong coalition builder will have a significant impact on the court.

The key to impact on the court is not how far 'left' they may appear to be but how many times they can convince Justice Kennedy to vote with them on a 5-4 vote.

It really is irrelevent how far left one of the 4 votes is if it is always in the minority. A slightly less 'left leaning Justice' that is able to brink Kennedy along most of the time would have a huge impact on moving the court to the Left.

[Kurt_and_Hunter]

47. Of course, and no

I haven't fallen into any trap. I actually understand the question. (Not saying that you don't but your comment presumes that my view of the courts is that of a child.)

Your first point is meaningless unless you are assuming an inverse correlation of leftiness and being persuasive or influential.

Your second point will come as a surprise to pretty much everybody. You may have fallen into the trap of thinking that SCOTUS decisions are binary choices.

If Stevens is assigned to write an expressive freedom decision it expands expressive freedoms in this country beyond what those freedoms would be if the same decision were written by the weakest available first amendment justice among the majority.

Decisions are written up to the limit of provoking dissent. And decisions get quite pointed sometimes. The chain of legal reasoning that makes up decisions is incredibly influential. (Dicta is not precedent but when a lower court judge reads a decision she is receiving philosophical guidelines on its application. No way around it.)

And every SCOTUS decision is a de facto constitutional amendment of a sort. (Though sometimes serving to promote a lower court decision to that status.) And it matters what positions are in the room when such a position is arrived at.

Heavens... imagine if Roe had been written by someone with a cleaner or clearer philosophical grasp on the issues. One way or another current real-world laws would be somehow different.

Sorry for the combative tone but some seem to have decided this was the place to hold the daily hate despite the fact that the OP is in perhaps the twentieth percentile of Obama criticism.

I don't know if these folks are misreading it or what.

The OP is so vanilla-obvious as to be almost tautological. (Notice that the OP talks about whether the court is right or left. It doesn't specify a list of decisions that would be voted differently. Hardly an accident.)

It is not an "Obama sucks" OP. It is a "man bites dog" OP. The language about Obama is inoffensive and hard to dispute. And the point is, "here's an irony. We get a Democratic President who gets to make three picks in a term and the court ends up a tiny bit less liberal." The reason is, of course, that two of the picks are of people who turned out to be a little more forward leaning than we expected. (Ginsberg minorly, Stevens majorly.)

That sort of luck is not reliable. Compare the FACT of two very liberal judges (I adore Stevens, BTW) versus the REALITY of two currently confirm-able justices (Dems alone are not sufficient, after all) and they ain't the same thing. (There is no law of nature that all justices move left.)

Of course the court will be to the right in terms of our best available (non-psychic) information.

Assign a left-right number to justices. Assign a move to Sotamayor. (Who the OP does not say is a rightward move, BTW. It says she was a minor move which actually means something here.)

Does anyone think Sotamayor represented a big move left? That's an argument to make, though it would be a lonely opinion. I do not think many in the legal community felt that she moved the court left to any noteworthy degree.)

Compare Ginsberg and Stevens as we Know they are to two hypothetical confirm-able justices. Add it all up.

The comments about Obama are to point out that he is unlikely to buck the environment by advancing any controversial names. If that be hate it's pretty unexceptional hate.

So the course the court move right.

Or it stays the same.

Or whatever.

Why this OP has brought out the reactive 'you are a hater' type stuff (not from you, just in general) mystifies me. Maybe having another topic defused at roughly the time this was posted caught some free-floating outrage.

[grantcart]

48. Actually it has become a binary operation

Its 4 versus 4 and Kennedy - pretty much without exception.

Who ever pulls Kennedy wins

Of course if we get less truculent right wing justices in the future there could be more coalitions against normal positions but right now its pretty well frozen on the important and contentious issues.


(I think that the reaction comes from a feeling that your being critical before the fact when I think that you were trying to describe a general analysis of how the court is maturing without any direct criticism of Obama per se.)

[suzie]

55. Actually, Obama could move the SCOTUS much further right by appointing a controversial

justice.

Apparently, Kennedy is the swing vote--whom Stevens is able to convince to go along with the Ginsburg, Sotomayor, and Breyer group some of the time.

Since Justice Souter seems to also have been able to garner Kennedy's support for opinions, it seems that stating that Sotomayor's appointment moved the SCOTUS to the right may be incorrect. It may have been the resignation of Souter, with his influence on Kennedy, that moved it to the right.

A controversial justice might tip things even further right by further polarizing the Court and encouraging Kennedy to vote with the Scalia group.

[JNelson6563]

36. Stinky Pantload

Man, DU's full of stinky pantloads today. How sad.

[apocalypsehow]

39. Is there *anything* about our current Democratic president and his administration you like?

:shrug:

It's a serious question, not sarcasm, because I've never seen you post an OP or a reply that wasn't some kind of passive/aggressive critique of either him or his administration. Maybe I've just missed it.

[retread]

42. "... in his heart of hearts .." WTF??? n/t

[dionysus]

44. you caught the "clever" reagan relate eh?

[HughMoran]

43. I'm trying to figure out your motivation for posting this.

Since this would be true for any President who was elected, I find your subject line deliberately misleading and provocative.

[Starbucks Anarchist]

45. So you followed a declaration with several guesses and assumptions?

:rofl:

[Lord Helmet]

46. Horseshit.

[secondwind]

49. Justice Stevens just said he's almost ready to step down. Another Obama appointee....and Ruth Bader

Ginsburg will be the next to step down. Another Obama appointee.

I don't see where you think it will swing to the right.

[warm regards]

50. Pretzel logic...

[cali]

51. lol. this is a very silly op.

of course, you have no way at all of knowing what Obama thinks in "his heart of hearts". Sotomayor hasn't been on the court long enough to draw a reasonable conclusion as to whether she'll shift it further one way or the other- though there are some indications that she could be a very liberal justice indeed.

I think, judging from all of Obama's federal judicial appointments, that you're wrong- but only time will tell.

[saltpoint]

52. It's hard to tell what the weather is going to be like a couple months

from right now.

It might rain.

It might not.

[saltpoint]

53. One could say that Obama will definitely appoint former St. Louis Cardinals

great Red Schoendienst to the Supreme Court and a prolonged debate could the rage in the blogosphere on whether an older ex-baseball player was an appropriate pick given his advanced years, or, age issues aside, whether Red would be biased in cases involving athletes, not that there are dozens and dozens of them annually before the high court.

A side-bar debate could erupt on whether Red Schoendienst was born in this country and angry demands could be registered calling for copies of his birth certificate.

Yet another could assert that he slept with John Edwards or financed the hooker the Duke La Crosse team hired.

A two-hour Panel special would air on Nancy Grace's program.

Or, and here's the kicker, President Obama might decide against naming Red Schoendienst to the high court.

Then other debates would ensue.

Also, we had macaroni salad with our evening meal a couple of weeks ago. It was pretty good.

[suzie]

54. Personally, I hate macaroni salad.

[saltpoint]

57. Dammit it all, we like it with meatloaf and lemonade.

A bit old fashioned, I admit.

[suzie]

61. Ziti salad--now that's better.

[JeffR]

58. I could get behind Red.

Though he was born in Germantown, which, doggone, doesn't sounds very American, does it?

Why not go all in and nominate Bob Gibson? And/or a big bowl of macaroni salad?

[saltpoint]

59. Red or Bob, either one works for e

Howdy stranger.

Nice to see the likes of you 'round these parts.

[JeffR]

60. Same to you, sir.

It's seldom worth posting here anymore, but a saltpoint observation is always worth a kick, even if the OP demonstrably isn't.

[depakid]

56. Pretty spot on analysis

I expect that the far right majority will be asserting its power in case after case, and that in many respects, this is in response to the election (as they recognize the possibility that their agenda- which is all they care about is one justice away from being thwarted).

Don't be surprised if several major precedents are overturned and some jaw dropping 5-4 are announced over the next several years.

[Zynx]

62. Stevens actually isn't a consistent liberal.

Case in point, Texas v. Johnson http://en.wikipedia.org/wiki/Texas_v._Johnson. He actually voted with those who wanted to keep flag burning laws on the books.