The most important decision(s) Barack Obama will ever make

Perhaps my judgment is skewed by the fact that I am a recovering (for now) attorney and an amateur constitutional law scholar. But to me, there is no disputing the fact that President Obama's most important decision -- or decisions, given the likelihood that he will face more than one such choice -- will be his nominee(s) to the U.S. Supreme Court.

This conclusion is borne out by a rather lengthy but extraordinarily insightful profile of Chief Justice John Roberts, written by Jeffrey Toobin and published in the May 25 issue of The New Yorker. Titled "No More Mr. Nice Guy" and identifying the Chief Justice as the Court's "stealth hard-liner," the profile reveals a jurist who is motivated by ideology to a far greater degree than even a knowledgeable observer might presume, surely more so than he let on during his confirmation hearings before the U.S. Senate. Toobin puts it this way:

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

This, then, is the challenge facing President Obama today. At 55, Roberts is likely to serve for decades as chief justice, all but certainly staying on the bench long after the Obama administration is over. Roberts' influence, as the Toobin piece clearly demonstrates, goes beyond simple mathematics, as in whether or not he votes with the majority or the minority: being chief justice, he has a singular opportunity to shape the Court in his own image through his style, his demeanor, and even through something as mundane as the opinion-writing assignments for which he is responsible. The problem, as Toobin goes on to explain, is that Roberts' "image," such as it is, necessarily bears the imprint of the president who appointed him:

Two days after the argument in the Voting Rights Act case, David H. Souter announced his resignation, giving President Barack Obama his first chance to nominate a Justice to the Court. The first Democratic nominee to the Court in fifteen years will confront what is now, increasingly, John Roberts’s Court. Along with Scalia, Clarence Thomas, Samuel A. Alito, Jr., and (usually) Anthony Kennedy, the majority of the Court is moving right as the rest of the country—or, at least, the rest of the federal government—is moving left. At this low moment in the historical reputation of George W. Bush, his nominee for Chief Justice stands in signal contrast to what appears today to be a failed and fading tenure as President. Roberts’s service on the Court, which is, of course, likely to continue for decades, offers an enduring and faithful reflection of the Bush Presidency.

Even as a practicing attorney, writes Toobin, Roberts was accustomed to "representing the interests of corporate defendants who were sued by individuals." Then-Senator Obama, in speaking against Roberts' nomination in 2005, noted this as well: "It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak." This strikes very close to my own heart, as a former insurance defense attorney who left the practice of law in 1996 having grown increasingly disillusioned with representing corporate behemoths in actions against individuals who regularly if not always actually deserved compensation from those corporations.

I believe that one of the signal differences between liberals and conservatives -- or, if you must, Democrats and Republicans, although I find the parties' ideological consistency on this rather inconsistent at best -- is the degree to which they defend the rights of the individual. John Roberts, like his erstwhile mentor and employer Ronald Reagan (and, of course, like the president who appointed him to his current position), evidently lacks empathy with the plight of the average American in many -- probably most -- instances. This trait, unfortunately, is shared by the other hyper-conservatives on the Court -- Scalia, Thomas, and Alito -- and it has led, with the addition of Justice Anthony Kennedy to that right-wing group, to a series of rulings that favor Big Business, bolster executive authority, and marginalize the powerless in exactly the arena where the powerless ought to be able to count on the most deference.

In short, Lady Justice seems to have been peering through her blindfold for most of the last decade. She is no longer blind, and the judiciary has become anything but apolitical. As a result, I do not think it hyperbole to declare that it will be up to President Obama to restore empathy and realism to American jurisprudence ... and he must start with his first appointment.

Thank you, Justice Souter

The retirement of Supreme Court Justice David Souter, announced officially today by President Obama, marks the departure of one of the High Court's most reliable liberal voices. Although he was appointed by Republican George H.W. Bush*, Souter dispayed a judicial independence typical of his New England roots, but those roots also gave him a taciturn, "homebody" character that made him a bit out of place in Washington.

Of course, this also gives the president his first chance to make a SCOTUS appointment, and I think this is where those of us who supported and voted for him truly will appreciate the fact that Barack Obama is in the White House. I haven't agreed with everything President Obama has done, nor was he even my choice in the primaries. But having him rather than Huggy Bear making this decision and perhaps more like it in the future gives me hope that critical issues like a woman's right to choose, same-sex marriage, and even election issues (are you listening, Norm Coleman?) will be shielded from Scalia-like judicial activism in the guise of so-called "strict constructionism." And while Justice Souter's replacement won't tip the current balance of power on the Court, choosing the right person will go a long way towards negating the long-term influence of the Roberts-Alito wing whose service is likely to last for many years.

So farewell, Justice Souter, and thank you. But before you leave, one request: do you think you could take Scalia or Thomas with you on your way out?

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* Interesting how often Republican SCOTUS appointees end up being liberal (see, e.g., longtime Chief Justice Earl Warren, an Eisenhower appointee); I can't think of anyone in recent years who went the opposite way ideologically.

An oath so nice, they did it twice

Here's a story that escaped me yesterday: after the somewhat embarrassing screw-up by Chief Justice John Roberts when administering the oath of office to President Obama on Tuesday, the two arranged to have a do-over in the White House last evening.

"We decided it was so much fun ...," Obama joked while sitting on a couch in the Map Room. Obama stood and walked over to make small talk with pool reporters as Roberts donned his black robe.

"Are you ready to take the oath?" Roberts asked.

"I am, and we're going to do it very slowly," Obama replied.

After a flawless recitation that included no Bible and took 25 seconds, Roberts smiled and said, "Congratulations, again."

Obama said, "Thank you, sir," and then added: "All right. The bad news for the [reporters] is there's 12 more balls."

[...]

In a statement, White House counsel Greg Craig said the oath was re-administered "out of an abundance of caution."

"We believe that the oath of office was administered effectively and that the President was sworn in appropriately yesterday. But the oath appears in the Constitution itself," Craig's statement said.

Two presidents -- Calvin Coolidge and Chester A. Arthur -- have retaken the oath because of unusual circumstances the first time around.

As an aside, isn't it nice to have a president with a genuinely good sense of humor?

Anyway, notwithstanding the fact that the oath itself is purely ceremonial and in fact has nothing to do with the president's actual accession to power (the 20th Amendment provides that the changeover occurs precisely at noon and does not stipulate the necessity of the oath), it was a nice touch to do it again, thereby silencing the screeching of the insane wingnuts who insist that by failing to take the correct oath on Tuesday, President Obama somehow is not really president. Yeah, I'll have what you're smoking, dude ...

Of course, the best laid plans ... The President did not use a Bible the second time around, so naturally the aforementioned screeching has taken a new tack:

jonfromcali wrote, "How long before the crazies start bloviating about the fact that Obama didn't use a Bible the time he got the oath right -- clear proof that he's a Muslim and doesn't plan to rule by Christian principles?..."

Not long.

goldmineman said, "Obama has still NOT been properly sworn in! He is NOT the POTUS until he says the oathe correctly (as written in the Constituion) and swears on the Bible. He ain't the president!"

And Bitter_Bill wrote, "He didn't use a Bible, for this, the official oath. Wonder why?"

Besides once again proving my maxim that Wingnuts Can't Spell, the utter contempt they have for facts is astonishing. A simple Google search reveals that the use of the Bible is a tradition, not a requirement, and indeed there have been presidents who did not use one at all -- for example, John Quincy Adams, who swore on a book of American laws.

So, in short, the wingnuts need to shut the hell up and enjoy the Obama presidency, as dignity, responsibility, and lawful behavior return to the White House after a painful eight-year absence.

The Roberts Court takes up church-state separation

For the first time, the current Supreme Court has faced the thorny issue of the separation of church and state. The case argued yesterday is the first challenge to Drunky McStagger's faith-based initiatives to reach the SCOTUS, but the issue is one of standing -- that is, "whether ordinary taxpayers have the right to sue over the Bush administration's embrace of faith-based organizations."

It's also a separation of powers issue, though, which is something about which I published an article in law school. From the WaPo article:

Constitutional scholars and some justices say that the First Amendment's religion clauses present some of the most difficult questions to interpret. Justices must balance the establishment clause -- Congress shall make no law respecting an establishment of religion-- with the free-exercise clause -- or prohibiting the free exercise thereof-- which immediately follows.

The case before the court involves a lawsuit that the Freedom From Religion Foundation, a Wisconsin-based group of agnostics and atheists, brought against the White House Office of Faith-Based and Community Initiatives. President Bush established the office in 2001 because, he said, he wanted to level the playing field between religious-based and secular groups vying for grants to provide social services. But the foundation said conferences held by the office favored the religious groups over the secular groups.

The question before the justices, though, is whether the complaints can even be brought to court.

The Supreme Court decided decades ago that taxpayers generally do not have the right, or "standing," to challenge government spending decisions simply because they do not agree with them. But it carved out an exception in 1968, in a case called Flast v. Cohen, for taxpayers to challenge congressional spending that violated the establishment clause.

A lower court said the Freedom From Religion Foundation's suit did not meet the Flast test, because it involved the executive branch, not Congress's taxing and spending powers. But the U.S. Court of Appeals for the 7th Circuit disagreed.

Predictably, the Bush maladministration argues that they ought not be challenged at all:

Solicitor General Paul D. Clement, who represents the Bush administration, said in a brief asking the Supreme Court to review the case that that decision would "create a roving license for any one of the more than 180 million taxpayers in the United States to challenge any action of the executive branch that offends that individual's own view" of church-state separation.

Okay. And the problem with that is ....? I share Justice Breyer's position:

Alito, Justice Antonin Scalia and Roberts -- whom Clements three times said was "exactly right" in his view of the case -- seemed most sympathetic to the government's argument, and Justice Anthony M. Kennedy worried about the courts "supervising the White House." Justice Clarence Thomas did not ask questions, but has written in the past that he does not think that the establishment clause gives rise to individual complaints.

Justice Stephen G. Breyer seemed most skeptical of the government's position that only congressional action involving taxing and spending was open to taxpayer challenge. "What's wrong with just saying that Flast stands for the proposition that when the government spends money in violation of the establishment clause, a taxpayer -- after all, the money comes from the taxpayer -- can bring a lawsuit?" he asked.

If you do the math, though, it looks like the Bushies are pretty certain to win this round, thereby putting another notch in their anti-Constitution belt. We can't get rid of this cabal fast enough, if you ask me ...