Lately, I see Barack Obama walking a tight rope over a precipice, using a pole to balance himself. On one end of the pole is the opposition, the Republicans, the discontented public. On the other is his own party, nervously wringing their hands and wondering how they can reclaim public support. A large weight was recently dropped on Obama’s shoulders when Supreme Court Justice John Paul Stevens announced he would be retiring. It is unclear where the burden of this weight will land, but I can’t get rid of the feeling that President Obama is one false step away from falling.
The selection of a Supreme Court justice is one of the most important political moments in our country. The members of the Court have the ability to change the political course of the nation, largely because of their separation from political pressure. Unlike any other position in government, Supreme Court justices serve for life, removing the need to cater to political or public desire. They have one job to do: interpret the law according to the Constitution. Retiring Justice Stevens himself is a prime example of this. Originally chosen by Republican President Gerald Ford as a conservative justice, Stevens has become one of the most liberal on the Court. Granted, part of this is because the Supreme Court has become more conservative over recent years, so it may just be that Stevens is relatively liberal. But the fact remains that justices on the Supreme Court have no fear of going against public, or political, desire.
Obama has already appointed one Supreme Court justice during his presidency, Justice Sonia Sotomayor. She was confirmed by a fairly narrow margin for a Justice, 68-31, with no Democrats opposing her and only nine Republicans supporting her.
Ah, partisan politics at its finest.
Was there a reason Republicans so strongly opposed her? Yes, although not really because of how she interprets law. She was most criticized by Republicans for a remark she made that basically amounted to her saying that she had certain life experiences that would lead her to better conclusions than white men who had no knowledge of that type of life. Sotomayor grew up in the Bronx and lived in housing projects, and her father died when she was only 9 years old. Republican senators recoiled at this “troubling” remark, and though the statement probably wasn’t the most politically correct thing to say, I wouldn’t necessarily say that her statement was false.
The current selection is going to be an interesting one. Because a liberal justice is retiring, one would think President Obama wants to nominate a liberal justice to replace him. Not necessarily.
President Obama understands that he is sliding in opinion polls. Not only that, but if he hopes to pass more legislation on his agenda (immigration reform, climate change legislation and ongoing economic policies), he may want to soothe Republicans by nominating a more moderate justice. It isn’t that he needs Republican support in Congress (at least not yet—mid term elections are looming), but it would be beneficial to him and Democrats if some of his proposals were met with bipartisan acceptance.
The Republicans, too, face an interesting decision. Should Obama choose to nominate a liberal justice, intuition would say they should oppose it. But Republicans could face public outcry for this; let’s face it, all they have done over the past couple of years is oppose anything the Democrats and President Obama have tried to pass in the halls of Congress. Americans appreciate it when Congress gets things done, and if Republicans continue to stymie proposals, citizens may grow resentful of them.
The likely candidates for the current opening are Solicitor General Elena Kagan and federal appellate judges Merrick Garland and Diane Wood. Wood is seen as the most liberal, followed by Kagan, with Garland being the most moderate. Therefore, it can be fairly safely assumed that Wood would face staunch Republican opposition, while Kagan and Garland would face considerably less.
So what’s going to happen?
It’s difficult to predict, although what should be done is fairly clear. President Obama has to nominate a more moderate justice to prevent a partisan confirmation battle. Because of his passage of health care reform, President Obama has found himself in a position where his actions are more closely scrutinized and frowned upon by the public than the Republican opposition to it. Because of this, a moderate liberal like Kagan looks to be the best choice. Most Republicans will still oppose someone like Kagan for no other reason than Congress is extremely divided along party lines.
I would predict similar numbers to the confirmation of Sotomayor, with only a handful of Republicans supporting even a moderate justice. But even garnering a handful of Republicans is better than none, and the American public will appreciate even a smattering of bipartisanship after the blood bath that was health care reform.
This opportunity is as much a blessing as it is a curse for President Obama. He has to tread carefully, or he may find himself plunging into the abyss.
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