It’s a simple fact that the makeup of the Supreme Court has been a far deeper concern of the far right in this country than the far left. This is primarily because the Warren Court made several rulings that accomplished progressive goals that the Congress itself was incapable of accomplishing on its own. This is the origin of the Culture Wars in a political sense, and of the term of derision: legislating from the bench. Obviously, the most striking item of contention has been the legal right to a first trimester abortion. But desegregation, contraceptives, prayer in school, affirmative action and other issues have gone against conservatives’ wishes at the Supreme Court. The desire to see these rulings reversed is what drives the Republican base to feel so passionately about the makeup of the Supreme Court. While the left may care just as deeply about these issues, there is less energy behind maintaining the status quo than there is in changing it. For this reason, any highly contentious battle over the replacement for John Paul Stevens is bound to fire up the GOP’s base more than the Democrats’.
That is one reason why President Obama will be tempted to avoid a fight. How to avoid a fight?
Salon just spoke with Curt Levey, the director of the Committee for Justice, a GOP group originally founded to push George W. Bush’s court nominees, about how Republicans might react to the selection of a new justice. His message? There will be “an interesting conformation fight this summer…unless [President Obama] nominates someone very moderate.”
For Levey, “very moderate” means someone like Judge Merrick Garland, a Clinton-appointee to the United State Court of Appeals for the District of Columbia.
Want slightly more of a fight?
As solicitor general since mid-March, Kagan has taken the lead in invoking the “state secrets” doctrine in litigation challenging the NSA’s surveillance program—“Obama Administration Embraces Bush Position on Warrantless Wiretapping and Secrecy,” reads the title of the Electronic Frontier Foundation’s press release. Kagan has surely been a major player in the Administration’s decision to continue to use military commissions to try detainees and in its about-face on releasing photos of alleged prisoner abuse. She’s fought a court ruling that would extend habeas rights to detainees being held by the U.S. military at Bagram air base in Afghanistan. Kagan also recently filed a brief urging the Supreme Court to overrule a 1986 precedent that expanded the rights of suspects in criminal custody. Kagan’s leading law-review article, “Presidential Administration” (114 Harv. L. Rev. 2245 (2001)), offers a broad defense of presidential authority and explores ways that courts might promote that authority. So there’s ample reason for folks on the Left on national-security issues to be concerned about her possible nomination.
Want a huge fight?
No judge whom I’m aware of is more extreme than Wood on abortion. Her defiance of the Supreme Court’s mandate in NOW v. Scheidler (and her incurring successive 8-1 and 8-0 reversals by the Court) ought alone to be disqualifying. In addition, Wood has (in dissent) voted to strike down state laws banning partial-birth abortion and (again in dissent) voted to strike down an Indiana informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey.
Anyone to the left of Wood might actually provoke the first Senate filibuster of a SCOTUS nominee since Abe Fortas in 1968.
Ultimately, the makeup of the Court is too important to shy away from a fight the administration can win. But we should not delude ourselves that there will be any short-term political benefit from a knockdown-drag out-brawl. It will just be a fundraising boon to a Republican Party that has everything going for it but the money they need to compete everywhere.
