by Rob Schofield, NC Policy Watch, June 30, 2015.
With basic rights hanging by a thread, progressives need to redouble their commitment to the selection of good judges
Progressives are gratified that the U.S. Supreme Court issued a pair of eminently reasonable decisions last week upholding the right of same-sex couples to marry and dismissing the latest absurd challenge to the Affordable Care Act. Indeed, there have been moments in recent days in which (dare one use the word?) optimism has crept into the hearts of many caring and thinking people as they’ve surveyed the national political and policy landscapes.
Could it be that even in a country utterly awash in the lies and distortions of Fox News, ALEC, Tea Party zealots, the National Rifle Association (and the bottomless piles of plutocrat cash behind them) that there really is hope for democracy and progress? Yesterday’s exclamation point of a Supreme Court ruling authored by Justice Ruth Bader Ginsburg upholding the constitutionality of Arizona’s independent legislative redistricting commission only added to the sense that perhaps the country has taken the Right’s best shot at repealing the 20th Century and emerged bloodied but unbowed.
As an NPR story on the redistricting case noted:
Justice Ruth Bader Ginsberg wrote the opinion for the majority, in which her citations included James Madison writing in The Federalist Papers.
“The people of Arizona turned to the initiative to curb the practice of gerrymandering,” Ginsberg wrote, “and, thereby, to ensure that Members of Congress would have ‘an habitual recollection of their dependence on the people.’”
Ginsberg continued, quoting a 2005 gerrymandering case: “In so acting, Arizona voters sought to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’”
To which, all a body can say is “Amen, sister!”
But before we get carried away…
As wonderful and hope-inspiring as these decisions are, however, we would all do well to remind ourselves that the forces of reaction are anything but decisively vanquished. After all, both the marriage and redistricting decisions were narrow 5-4 squeakers and while Chief Justice Roberts did, to his credit, author the 6-3 opinion upholding Affordable Care Act subsidies, the vitriol he spewed in criticizing the marriage ruling was quite enough to remind us of what kind of man it is that presides over the Court.
That fact was brought home in spades yesterday as the Court concluded its term with two disheartening 5-4 opinions upholding the right of the state of Oklahoma to, in effect, torture convicted murderers to death and striking down a modest attempt by the Environmental Protection Agency to save human lives from toxic air pollution because the agency allegedly failed to give adequate weight to the costs that doing so would impose on corporate polluters.
As they have so often in recent years, many basic American rights and political fundamentals remain, for all practical purposes, in the hands of Justice Anthony Kennedy — an elderly, one-time Ronald Reagan crony who, in his 28th year on the Court, occasionally breaks with his fellow conservatives to side with its moderate-to-liberal wing.
What’s more, the prospect for significant improvement in the Court’s makeup seems hard to envision any time soon. Though Kennedy (who will be 79 next month), Ginsburg (82), Antonin Scalia (79) and Stephen Breyer (77 in August) are all getting up there in age, filling any of their slots with a quality replacement would not be easy – even if President Obama weren’t approaching his final year in office.
First of all, the Republican leaders in the U.S. Senate – which, of course, must approve all federal court nominees – have been setting new standards for obstructionism when it comes to Obama nominees in recent months. Secondly, the fact that the President will soon descend into full blown lame duck status in the not-too-distant future makes it doubly difficult to imagine.
Even if, say, Justice Ginsburg announced her retirement tomorrow, getting a good replacement vetted, nominated and confirmed prior to the total gridlock sure to grip Washington in 2016 would be a heavy, if not Herculean, lift. Moreover, such a scenario would only, at best, maintain the status quo.
And after that it just gets worse. As a practical matter, once the 2016 presidential campaign gets into full swing, it’s almost impossible to imagine a scenario in which the GOP-dominated Senate would confirm any Obama Supreme Court nominee.
Fighting back against conservative control of the courts
Of course, the obstructionism that would greet any Obama Supreme Court nominee is nothing new. Conservatives have been blockading and filibustering the President’s nominees at all levels of the federal judiciary since he took office in 2009.
Part of this problem is just the increasingly divided nature of modern American politics, but another significant part is clearly attributable to an intentional, longstanding effort by powerful forces within the American conservative movement to remake the federal judiciary. These forces recognized as far back as the 1970’s that commandeering control of the courts by appointing younger, committed ideologues to lifetime federal judgeships was one of the most effective tools they could employ in advancing their ideological agenda.
As a result, for decades now, groups like the NRA, Concerned Women for America, the Chamber of Commerce and an array of corporate interests have worked hand in glove to flood lawmakers with calls and emails anytime they even consider a judge for any federal judicial appointment who has ever displayed a measure of independence or, God forbid, progressive tendencies.
Conversely, in the proudly disorganized tradition of their movement, progressives have been slow and inadequate in their response. Even in recent years as President Obama submitted one diverse and high quality nominee after another, rank and file activists – even those who ought to intuitively grasp the critical importance of who serves on the federal courts – have often been distracted or asleep at the wheel.
The results of this unbalanced prioritization have been predictable. As is explained on the Why Courts Matter website maintained by the good people at the Center for American Progress, in the history of the United States, 168 federal courts nominees have been filibustered. Of that number, amazingly, 82 have occurred under President Obama.
A classic example, sadly, can be found right here in North Carolina where Senator Richard Burr has successfully pulled off a solo, unexplained filibuster of the President’s efforts to fill the oldest federal court vacancy in the country. It’s gotten so out of hand at this point that the White House appears – for all intents and purposes – to have simply given up even trying to fill the vacancy in the Federal District Court for the state’s Eastern District despite the fact that the people of the district are now going on a decade without their full complement of judges.
Connecting the dots
The bottom line going forward, of course, is that this has got to change. If the nation is to avoid a judicial blockade of the kind of progressive policies that figure to be in the offing in the coming decades given the nation’s increasingly diverse and open-minded population, progressives must band together and speak up much more passionately and regularly about who serves on the federal courts (and the state courts too).
Moreover, this means a lot more than simply riling up the troops every five or six years for a Supreme Court nomination fight. Sure, the battle over who serves on the U.S. Supreme Court is and will continue to be critical and will no doubt be a key issue in the 2016 presidential election. As the recent decisions confirm, many of our most important rights hang by a thread. That said, progressives must begin to make the composition of the judiciary at every level a core priority in every federal election.
Let’s hope the recent narrow decisions serve as a wake-up call to all progressives to become regularly engaged in helping to determine who those justices and judges are at all levels.