"I have hopes that President Obama will at least try to appoint somebody who will get a huge bipartisan vote, and if he will, he's going to go down in history as a better president. If he doesn't, there's going to be a whale of a fight if he appoints an activist to the court. That's not good for him, it's not good for the Senate, it's not good for the country." This from Senator Orrin Hatch (R-UT).
Now here is something we never heard from Senator Hatch: "I have hopes that President Bush will at least try to appoint somebody who will get a huge bipartisan vote, and if he will, he's going to go down in history as a better president. If he doesn't, there's going to be a whale of a fight if he appoints a conservative to the court. That's not good for him, it's not good for the Senate, it's not good for the country."
GOP leaders are insisting that President Obama must nominate a moderate justice to replace retiring Supreme Court Justice John Paul Stevens; they want a mainstream jurist who will decide cases impartially. And in other news, Republicans demand that Democrats give up the White House to Mitt Romney. The second demand is obviously ridiculous but has no less credibility than the first, which is real.
The first and most obvious response to the absurd Republican demand for moderation is: Antonin Scalia, appointed by Ronald Reagan, and John G. Roberts and Samuel Alito, appointed by George W. Bush. Their records prove these men to be anything but mainstream, as we shall see shortly. Their extremism was openly celebrated by the right during the nomination and consent process.
The second self-evident response is: President Obama won a national election, and he has the right to appoint justices who reflect his views. He won; Republicans lost. To the winner go the spoils, as they did with Reagan and Bush. But now that a Democrat is doing the nominating, Republicans want to change the rules of the game at half time. The Republicans are like a football team losing by two touchdowns, demanding that the referees declare that a win is valid only if by three touchdowns. They piously demand fidelity to rules when they are ahead, and then dismiss those same rules as irrelevant when losing.
In light of the GOP's overt push to seat far-right conservative judges on the Supreme Court with not even a nod to moderation when Republicans occupied the White House, we can only conclude the right's demand now for a mainstream judge is funny. Otherwise if the GOP were serious, the outrageous and transparently cynical call would be too sad to contemplate.
Let's start with the activist radicalism of the past three Republican appointees to the Court. Once established we will expose an astonishing Republican double standard that is breathtaking in its scope. GOP tactics do not look good under the bright light of reason.
Right Wing Judicial Extremism
Whether you agree with Alito or not, arguing that his positions and associations are "mainstream" would tax the imagination of even the most creative conservative. Let's take a brief tour of his particular brand of extremism.
Judge Alito argued that under his interpretation of the Constitution a state can require women to notify their husbands before they are allowed to have an abortion. He ignored evidence that such notification would in the case being decided (Planned Parenthood of Southeastern Pennsylvania v. Casey) lead to a severe battering from the husband. In a dissenting memo in that same case, Alito jumped off the cliff of extremism when he wrote as fact that "certain methods of birth control are 'abortifacients,' i.e., that they do not prevent fertilization but terminate the development of the fetus after conception..." To understand how radical this view is know that many conservatives argue that the IUD and birth control pills are abortifacients and should be outlawed, and Alito agrees with them. Be absolutely clear about this: Alito wants to outlaw birth control methods now legal and widely available. That is bad enough but his reasoning is even worse: he wishes to impose on all women his religious view that life begins at conception. He does so with no case law to support his views as he vows allegiance to judicial restraint.
In Doe v. Grood, Alito wrote a dissenting opinion that upheld the right of police to strip search a woman and her ten year old daughter who were at home when the police executed a search warrant that specified only a search of the premises and one named male. Alito argues that police have unfettered freedom to reinterpret or ignore completely the terms of search warrants. This from a judge who disdains judicial activism while he reinterprets and guts the fourth amendment's guaranteed right to be free from unreasonable searches and seizures.
Alito's radicalism is also evident in rulings on gun control, sexual harassment, and equal access to education. His own words sum this up best, taken from his job application with the Reagan Administration. In that application Alito admitted he has a personal disagreement with Warren Court decisions on "criminal procedure, the Establishment Clause, and reapportionment" and that he was "particularly proud" of his work arguing "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." Alito proudly noted his membership in the Concerned Alumni of Princeton, a now-defunct ultra-right group famous for misogynous opposition to women, open disdain for minorities on campus and overt bigotry against homosexuals. Yes, Alito believes that affluent white male alumni and their sons are vulnerable, under attack and need protection.
Citing an extreme version of "original intent" and "strict construction" known as "original meaning" Scalia said that our Constitution is not a "living document" that can reflect "evolving standards of decency that mark the progress of a maturing society," but rather is a set of fixed rules established permanently in 1789. The Constitution is exactly "what it meant when it was adopted." His approach is "textualism" which posits that the "plain and ordinary meaning" of the Constitution's text should be the guiding principle of any interpretation. Scalia reads the text as literally as possible, refusing to allow for any broad interpretations; he rejects any appeal to rights or powers that are not explicitly and unequivocally spelled out. Consider the implications of this approach. This means no right to privacy, no right to abortion, and no means of adapting existing laws to evolving moral values. We are forever stuck in a world as seen through the eyes of male, land-owning aristocrats in 1789. Yet Republicans call for Obama to nominate a moderate.
What is so terribly odd about Scalia's position is that the Constitution nowhere says that the document must be strictly interpreted through textualism. Meaning that Scalia cannot point to any text in the Constitution that would support his views that the text must be interpreted under the guiding principles of strict construction. So Scalia must interpret the Constitution to find any justification that we are not allowed to interpret the Constitution! Oh sweet paradox.
Nothing about Scalia's view is remotely moderate, and his appeal to "original meaning" is even considered extreme by other conservative judges. Scalia is blatantly anti-gay, anti-abortion, pro-prayer in school and openly disdainful of anybody opposing his views. This does not a moderate make.
As an aside, tangential to my main point about extremism in Republican judicial nominees, I must point out that Scalia's purity in textual interpretation was badly soiled when he easily abandoned original meaning to rule in Bush v. Gore. Remember what that case was truly about: the Florida Supreme Court had just ordered a manual recount of more than 40,000 undercounted votes in the 2000 presidential election. Bush was leading Al Gore in by just 537 votes at the time, and Bush wanted that recount stopped immediately, at all costs. Rather than deferring to the inherent rights of the state of Florida, or to that state's Supreme Court, either of which would have been consistent with his previously-stated judicial philosophy, Scalia overreached and ruled with no appeal to constitutional text at all. Some view this ruling as the ultimate example of judicial activism. He appealed to an esoteric "equal protection" argument to deny the very real and concrete possibility of an accurate count of votes, undermining the most basic of democratic rights.
As an aggressive cub lawyer in the Reagan Justice Department, Roberts supported and actively participated in efforts to oppose school desegregation. He worked to prevent employers from using affirmative action to address the consequences of past discrimination. These were not, however, his most extreme views. Roberts also worked to defeat the expansion of voting rights protections, an effort that enjoyed widespread bipartisan consensus.
In 1990, Roberts co-wrote a brief arguing that a federal law criminalizing flag-burning did not violate the First Amendment. The Supreme Court rejected his argument. Roberts co-wrote the government's brief in a 1991 case where the Supreme Court upheld regulations banning federally funded health clinics from providing abortion-related counseling.
Although the GOP is secretive about what role Roberts played in Bush v. Gore, we know he served as legal consultant, lawsuit editor, and coach to prepare the legal team for arguments before the Supreme Court. Perhaps only coincidentally Bush later appointed Roberts to the Supreme Court, and then gave him the plum job of Chief Justice. Suggesting a quid pro quo would be unseemly.
In 2003, Roberts urged his own D.C. Circuit Court to consider overruling its own precedent to hold that an Endangered Species Act regulation exceeded Congress's power to regulate interstate commerce. His plea revealed a radical view of the Commerce Clause, not a trivial issue considering the clause is the foundation of multiple laws that protect the environment, civil rights, workers, consumers, and public health and safety.
Roberts wrote an opinion in 2004 rejecting the civil rights claims of a 12-year-old girl, Ansche Hedgepeth, who was arrested, searched, handcuffed, and detained by Washington, D.C. police. Her high crime was eating a single freedom fry in a D.C. metro station. Note that an adult eating that same fry would receive only a citation. Yet Roberts said that arresting the girl served the "goal of promoting parental awareness and involvement with children who commit delinquent acts." His logic included the idea that, "The law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest.. . .That is true even with respect to minor offenses." She ate a French fry.
At his confirmation hearing in 2005, Roberts said, "My job is to call balls and strikes, not pitch or bat." That nomination promise did not last long. That latest assault on moderation was the Court's 5-4 decision to lift the ban on corporate funding of political campaigns. That the Roberts court has veered far to the right is indisputable, and no fair observer would call the court moderate or mainstream.
To the Victor Go the Spoils
Given this record of nominating judicial extremists, the GOP is hardly in a position to "demand" anything from Obama. But let's say a conservative reading the above would argue that nothing about any of those cases for any of the three justices is extreme. Since these rulings are consistent with far-right philosophy, anybody of that persuasion would believe the court to be acting reasonably. So, rather than getting into a prolonged argument about the merits of each case, or if each ruling is mainstream or extreme, we can use a different formulation. To all the conservatives out there, ask yourself this simple question: are you pleased with having Alito, Roberts and Scalia on the Supreme Court? Of course; these justices properly represented your conservative views.
So now Obama is president. Now the time has come to place on the Supreme Court a judge who the left is pleased to have on the Court. It is that simple. Forget about mainstream or extreme or any other demand from the right. Just as Reagan and Bush appointed judges that reflected their rightist political views, so too should Obama nominate those who properly reflect a liberal perspective. Demanding anything different is nothing but blatant, overt, unambiguous hypocrisy that can and should be simply ignored. Republicans lost the election. Suck it up and take it like a man.
Instead, Republicans are acting like petulant children, not mature adults. They have forgotten their own statements in support of Reagan's and Bush's nominees. They apparently have forgotten as well that their statements were recorded. So let us now examine what Republican leaders said then, and what they demand now, using Sonia Sotomayor and the anticipated nomination to replace John Paul Stevens as concrete examples.
On speedy confirmation of Supreme Court nominees:
THEN: In support of Alito's confirmation, Senator Jeff Sessions (R-AL), the ranking Republican on the Judiciary Committee, called for fast action on Alito's confirmation process, saying: "My personal view is, let's finish it this year; let's not have it hanging out there... You don't have to read everything he's written."
NOW: In opposing Sotomayor's nomination, Senator Sessions said, "There are 3,000 or 4,000 cases that are part of her 17-year record. ... They need to be examined, and they will be examined. I don't think it's good to rush." He said elsewhere, "We must remember that a Supreme Court justice sits for a lifetime appointment, and the Senate hearing is the only opportunity for the American people to engage in the nomination process. Adequate preparation will take time."
DOUBLE STANDARD: For Bush's candidate, no need to read the nominee's body of work and must have speedy confirmation; for Obama's choice, must read everything the nominee ever wrote no matter how slow the confirmation process.
On the role of the Senate in confirming a Supreme Court nominee:
THEN: In promoting Alito's nomination, the Bush White House said, "The Senate has a constitutional responsibility to hold an up-or-down vote on every judicial nominee, and throughout its 216-year history, the Senate has held an up-or-down vote on every Supreme Court nominee with majority Senate support." Craig Thomas (R-Wyo) said, "I think [Bush] deserves an up or down vote based on whoever he nominates."
NOW (Sotomayor): Preparing for the Sotomayor hearing, Senator Bailey Hutchison (R-TX) said that she does not think the "need for filibuster will be there unless we have not had a chance to look at the record fully." Mitch McConnell (R-KY) said of a Sotomayor filibuster, "But I do think if you look at all the tools available, it's clearly one of them that may or may not be employed at some point."
NOW (Stevens replacement): In anticipation of Obama's nominee to replace Justice Stevens, Senator Sessions said, "If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution." (He means using the filibuster). Jon Kyl (R-AZ), the Senate's number two Republican said when asked if the GOP would resort to the obstructionist tactic it once routinely denounced, "It will all depend on what kind of a person it is."
DOUBLE STANDARD: For Bush, Republicans demand an up-or-down vote; but for Obama, with Sotomayor and a Stevens replacement, a filibuster would be perfectly OK should the GOP not like something about the nominee or confirmation process.
Do Republican leaders realize their words are being recorded? That Republican statements when the Party is in power can be compared to when they are in the minority? The GOP's duplicitous, two-faced, deceitful, dishonest and horribly cynical positions on Democratic Supreme Court nominations in contrast to those put forth by Republican presidents reveal the moral corruption of a Party completely devoid of core principles. Their cries for moderation grate like the screams of a spoiled brat clamoring for more ice cream. Republicans need a time out so the adults can deliberate in peace.
Obama should nominate an overtly leftist candidate as a counterweight to the right wing extremism of Alito, Roberts and Scalia. Let the GOP filibuster, and bluster. Bring it on.