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.
Labels: Barack Obama, George W. Bush, Jeffrey Toobin, John Roberts, law, personal, Ronald Reagan, Supreme Court
posted by Sinfonian at 4:53 PM
