For Democrats and progressives, it is critically important that President Obama’s nominee to succeed the late Justice Scalia becomes the next Supreme Court Justice. Unless…wait for it…unless President Clinton’s or President Sanders’ choice is elevated to the Court.
Filling the vacancy with someone who will generally align with Ginsburg, Breyer, Sotomajor and Kagan rather than the conservative bloc needs to be our goal. The fantasy that the next Justice will be a liberal dream candidate, a new William O. Douglas or Ruth Bader Ginsburg, a 45-year-old Larry Tribe, Saint Elizabeth Warren, whoever, is just that: a fantasy. Give it up — it’s a distraction from the real game.
This is a political issue. The Constitution creates a shared power to choose justices, and there’s no one to tell the Senate it must carry out its constitutional role of considering and voting on a nominee. No one except the people through their expression of disapproval, which they will get a chance to do in November at both the presidential and senatorial levels. If he plays it right, Obama can either (a) get himself a good justice who will uphold federal power and individual rights or (b) get a majority of the country angry at the Republicans during an election year when they are trying to win the presidency and defending a lot of incumbent senators in blue or bluish states. If Obama were foolish enough to try appointing a liberal dream justice he would not get him or her confirmed and, more importantly, he would not succeed in creating a narrative that focused the political blame on the Republicans.
So who should Obama nominate? I’m not a big fan of identity politics, but in the year of “Black lives matter,” he should nominate a moderately liberal black man. Not the Indian-American Srinivasan, not the Asian-American Nguyen, not Merrick Garland from the D.C. Circuit. Not even a black woman: her gender would complicate the narrative of the nominee as it presents to the American people. Thus, a moderately liberal black male jurist or law professor. NOT a pol like Booker or Patrick — that would give the Republicans an excuse to not act, claiming lack of judicial experience or temperament. The choice needs to be someone whom it’s hard to say no to on a principled basis. Someone who would drive black turnout in November (without Obama himself on the ballot) if the Republicans do not confirm him or even give him a vote (“Black man can’t even get a vote from these Republicans in Congress.”) and whom it would strike even the relatively few truly moderate swing voters as unfair not to consider or confirm. Also, it must be someone who would make a good witness if the Republicans do come around, after weeks of media outcry and massive public demonstrations, to giving him a hearing. I don’t know much about Judge Paul Watford from the 9th Circuit, but he or someone like him is what we need to win this fight, either with an eventual grudging confirmation or as the face of Republican unfairness, intransigence, and yes, racism, for many months this year all the way to November.
Recommend but not fully endorsed. Worth discussing though.
This specific line:
The gender barrier was broken on the Supreme Court a generation ago with the already-retired Sandra Day O’Connor, nominated by none other than Ronald Reagan. The racial barrier on the Supreme Court was broken by Clarence Thomas, nominated by George H. Bush.
What “narrative” would it “complicate” as it “presents to the American people”?
Perhaps there are some voters who will dismiss the nomination of, for example, Loretta Lynch — the sitting Attorney General. I, for one, think many more Democratic votes will be energized by such a nomination — especially if it is opposed by the GOP, and even more especially if it is delayed by the GOP.
In my view, your concern about the impact of nominating a black woman is both misplaced and also overrated.
when President Johnson put him on the Court.
Fred Rich LaRiccia
Of course. I stand corrected.
Jeesh. š
us Baby Boomers experience these ‘senior moments’ all the time but as Thomas Edison said : ” The great thing about making a mistake is that it doesn’t have to be permanent.” š
Fred Rich LaRiccia
Somervilletom, you may be right about how advantageously a Lynch nomination, or for that matter a Kamala Harris nomination, would play out. But you don’t know me well enough — at all, for that matter — to accuse me of gender bias. You don’t even know if I am a woman or a man.
I frankly don’t care about the next Justice’s race, gender, ethnicity, or religion. I want a youngish Justice who leans toward the left. My post offered my opinion about how best to achieve that result.
You asked about this idea of a black woman nominee “complicating the narrative,” as compared to a black man. I may be wrong about this, and I welcome thoughtful discussion of the point. My thinking is that most of the highly publicized outrages that have spawned the “Black lives matter” movement, beginning with Trayvon Martin, have been perpetrated on black males. They are part of a narrative of racial bias. It is this narrative that I am hoping Obama taps into to apply political pressure to Republican senators and presidential candidates.
There is of course another odious narrative around gender bias and discrimination. But when engaging in political theatre it is often advantageous to simplify, to boil the situation down to as small a number of essential elements as possible. Because “male” tends to be the default in our society (something I’m not at all happy about), the story of a black man being denied a hearing may be more simple, and more effective, than getting a nomination caught up in gender politics as well. That’s all I meant to say.
I would note in passing that while there’s a lot to like about a Lynch nomination, it would create a vacancy at Justice, and leave Obama open to the charge that if he can create a vacancy in such a high level job, it’s OK if the Republicans leave a vacancy among the Supremes.
In any event, the point of playing identity politics in this instance is not, for me at least, to advance a particular group or characteristic. It is to win this fight, by whatever means necessary.
I appreciate your clarification. I didn’t mean to accuse you yourself of gender bias, and I apologize if my comment was unclear about that.
I meant, instead, that to me your concern is exaggerated.
I agree with you wholeheartedly that we want to win this fight by whatever means necessary.
But I like the narrative that plays up and your arguments for him, and he also got confirmed by a substantial majority including nine Republicans. But he is a more known liberal quantity than Sri Srivasan or Merrick Garland.
Nguyen seems like a pretty interesting person, she’s young, progressive and has a good background to sell to the public as the child of refugees fleeing a communist regime. A good way to stick it to the anti-refugee crowd while also daring them to attack the patriotism of someone who fled the VC with her family and was a military bar whose father worked for the Marine Corps.
The average time for a vote for Obama’s nominees has been about 70 days. The repubs will look too ridiculous if the just refuse to act. At the risk of sound like Trump, what has been said so far should be viewed as a negotiation. The repubs will eventually graciously agree to go through the trouble shooting down whoever Obama nominates with extreme prejudice.
Realistically, the only chance to get someone through is to appoint a Senator or former Senator. The opportunity to trade Scalia for even a conservative dem is just too great to pass up, so Obama should at least try. If and when that fails, there’s plenty of time to put up a more inspirational/politically problematic for repubs nominee who will fire up the base in November.
If we’re talking identity, I would like to put in a request?. The Supreme Court had a ridiculously unrepresentative majority-Catholic body. Can we avoid adding more adherents to the most meddlesome large religion in our country?
Roughly 22% of Americans are Catholic. Right now 62.5% of SCOTUS Justices are Catholic.
Roughly 1% of Americans are Jewish. Right now 37.5% of SCOTUS Justices are Jewish.
If it makes sense to avoid over-representation by religion (and hint: it doesn’t), isn’t the logical argument to not nominate a Jew, given that Jews on SCOTUS already represent a 37.5x multiple of the American population, rather than Catholics, who “merely” make up a 2.8x multiple of the American population?
Adam Liptak at the NYTimes uses lengthy quotes from a dissenting Scalia opinion on same-sex marriage to talk about the lack of diversity on SCOTUS. it is quite good
http://www.nytimes.com/2016/02/16/us/politics/what-would-antonin-scalia-want-in-his-successor-a-dissent-offers-clues.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0.
The most under-represented group??? Protestants, surprisingly. Along with lawyers who did not go to Yale or HLS.
Areligious Americans make up about 20% of the population, and are entirely absent from the Court. The same Court that tells everyone to shut up as their tax money supports prayer and evangelization.
I’d be happy with any liberal on the court no matter if they had a different faith or no faith at all. While there have been probable atheists on the court in the past, none have declared it publicly and that would be a symbolic shift. But there is no religious test for public office so I hope the most qualified and confirmable liberal gets choosen and confirmed, and if they are non-theist so what? More Americans would shrug than care these days.
Catholic jurists on the court have run the gamut from the deplorable like Roger Taney to the noble like William Brennan and plenty in between. Justice Kennedy is a devout Catholic who swung the court to save Roe and federalize gay marriage, Chief Justice Roberts saved Obamacare despite his personal beliefs. Justice Sotomayor hasn’t used her faith to meddle in anything either.
On the major issues of the day the Catholic Church when it has meddled has lost, whether it’s choice or gay marriage which the majority of its American adherent support or the death penalty, euthanasia and locally casinos where it’s views have failed to influence the electorate to my personal lament in those areas where I agree with papal teaching.
I’m the only person under 30 I know who still goes to church, I was the only under 30 at mass on Ash Wednesday, our faith like most others is receding from prominence in this country. Your atheist triumph is only a decade or two away as the ranks of the ‘nones’ swell and I question whether we really will be better off when secularism and it’s solely materialist concerns triumphs over a sense of the commons and our solidarity to one another. You’ll wish your liberal Christian allies were still around to help you then.
At one point (80’s maybe) it looked like there was a religious resurgence in some of the Protestant religions, but it looks like that’s faded.
Catholicism is held up (based on my observations at church) by the 60-80 crowd, as well as some in the 35-45 set trying not to have their kids grow up as heathens. Once the older ones die, and that tier of parents (who grew up with religion) moves on, I doubt there’s another cohort.
I’ve read the mainline Protestants- Lutherans, Episcopals, etc. are fading fast.
So…I guess that’s one way to end up more like Europe.
I hope you do not really believe the bigotry that secularists are solely materialists. That is a new low for you. We live in a big world and are surrounded by people of faith, but very few people who believe as our nation’s founders did and who recognize that gods should not be the basis for our democracy.
My read of the literature is that anthropological evidence supports the premise that humans use religious belief to reinforce pre-existing moral and tribal attitudes, rather than vice-versa.
I hope that we evolve into a culture that values a sense of the commons, our solidarity with each other, and similar aspects of community without encumbering those with the baggage of Medieval, Dark Ages, and even Bronze-Age superstition. I hope that we can collectively move beyond a belief system premised upon an infanticidal deity who demanded the blood sacrifice of his offspring in repayment for a claimed debt incurred at the very dawn of time. No matter how you dress it up, the story of Abraham and Isaac is a brutal reminder of a savage time — a brutal reminder that is celebrated at every Sunday mass.
It appears to me, as a former Episcopal, that today’s allegedly spiritual institutions have already elevated “solely materialist” concerns to astonishing heights. The unholy alliance between the Catholic Church in America, the extreme right-wing Protestant churches in America, and the most extreme right-wing elements of the GOP suggests to me that in practice the influence of today’s weekly church-goers is just the opposite of what you suggest.
There is a rich variety of choices besides today’s Abrahamic religious traditions and “secular materialism”. I get more spiritual sustenance at a weekly yoga class than from any of the several churches I’ve visited in the past few years.
I suggest that our gathering of liberal allies will be enhanced, rather than harmed, embracing those who choose to forego a weekly religious observance. For better or worse I suspect that, as you observe, that particular train has already left the station.
and most of the discussion here would probably revolve around opinions stemming from our own experiences. In no way do I feel qualified to discuss this objectively (and I have also read that religion may be inherent in our brain, which might be what you’re referring to).
I’m sort of the school these days that says times change and learning to live with it is more helpful than decrying it. It’s sad in a Ward & June way- but the reality is certainly darker and maybe better in the past.
I just think we’re in for a different world- values, charity, lifestyle, etc could all be altered. Sunday becomes Saturday 2, for example (which for many people it is already). The list could go on and on.
With which I agree wholeheartedly. My point is let’s work together in solidarity and subsidiarity with one another to protect the commons and ensure our mutual well being can be maintained and even enhanced. That’s the core of the Catholic Social teaching I subscribe to, and crosses denominational lines since Protestants from my in-laws to my future wife to Christopher and notably MLK who was heavily influenced by this teaching and the teachings of a Hindu influenced by the first generation of free thinking Americans who had no creed.
This is how we reinforce one another. I felt sabutai’s first comment about Catholics on the court painted with a broad brush and was too simplistically dismissive of that religions and all religions contribution to the progressive movement and social justice. But I welcome an atheist on the court who values the commons and mutualism. I’d take a theist who values those things above an atheist who doesn’t, and vice a versa.
Embedding may not have been clear.
As for MG, there was a good piece in the New Yorker a few years ago about brunch replacing the Sunday observance and how it’s hell for service workers and rather indulgent for the secular upper classes that enjoy it in a way that discourages mutuality. There is also a direct correlation with economic displacement due to globalization and the decline in marriage rates, religious observance and the rise of out of wedlock births amongst the working class.
There is some value in a small c cultural conservatism that elevates hearth and home above the material marketplace, and that kind of conservatism can ironically be better secured by the policies Sen. Sanders is advocating. He is a secular Jew who has done a much better job linking this issues together than the Christians on the right can link their beloved market with Scripture plainly skeptical that it is the logical end of humanity’s flourishing. I may be getting overly philosophical here, but I think one can reject religion and still seek out fellowship and solidarity, I do think it’s harder for society to do that in a unifying way and that we lose the prophetic voices that the religious left has always advanced in this country.
…for maintaining at least some vestiges of the “Blue Laws”, despite their original religious implications and motivations.
I have trouble making 4 pm Saturday Mass when one of my kids has soccer at 3, 4, or 5. My other one plays basketball 1030-12 on Sunday.
I remember even as a kid when practices were on Sunday evenings and not the morning to accommodate religious obligations, and I grew up in Cambridge. Now games are in the morning.
…seems to be if your faith is that important to you, you will prioritize it over sports, but sports are under no obligation to accommodate you.
Daylight hours [or kid-wakeful hours if you got lights], minus school hours, leaves only so many hours for loads of games.
There aren’t enough fields to not use them Sunday mornings in many communities.
Most Protestants have one opportunity per week to worship and it’s Sunday morning. Maybe a big church would have two services, but still both Sunday morning, say 9 and 11 AM. In my experience Catholic Churches have multiple masses on Saturday and Sunday and maybe even during the week.
I hated the earlier start times at the proty churches we attended but the potlucks and welcoming coffee hour more than made up for it. At the typical Catholic mass in Boston the priest barely gets “mass has ended, go in peace” out of his mouth before the stampede to the parking lot begins. I guess the silver lining to shrinking attendance is that we will both be attending churches where everybody knows your name.
Playing hardball here needs to go beyond the nominee. Lots of discussion above about who a nominee should be, but so long as they’re fairly acceptable by the mainstream independents (And you’d basically have to not be exceedingly to the left/right to meet that threshold), then the real hardball needs to come from members of Congress.
Once Obama puts forward a nominee, the Senate AND House Dems need to stall, refuse to vote/vote no, filibuster and everything else within their power to hold up the business of Congress to push the issue. Make the Rs hold committee hearings and vote up/down on Obama’s nominee. Especially if it’s a black/brown/gay person, it will really put many on point. I’m especially thinking of the R Senators up for re-election in swing states – what a great narrative against someone like Rob Portman, Ron Johnson or Pat Toomey.
While the far right Rs will balk and complain, I have a feeling that most independents will support the President’s position and it will really invigorate the Ds.
Why not both?
Absolutely, (b), then (a), after weeks of Republicans taking it on the chin, would be the best outcome imaginable. This only happens by Obama nominating someone who ultimately, because of the building political pressure brought about by a compelling narrative, MUST get a hearing. That wouldn’t be Merrick Garland or Amy Klobuchar.
Politically, what happens if the Republicans try to deny a hearing to an eminently qualified, reasonable black nominee in the time of “Black lives matter”? In the words of Dirty Harry, “Go ahead. Make my day.”
Agreed. Hat was the gist I was driving at. I think there’s a far right fringe who will fight for the Rs to stand firm, but I like to use the Parent Test – would my parents agree with this? They’re both center leaning center-right. If they agree with Obama/Ds then it will probably fly with a majority of Americans. They’d say Obama is right in this case – stop being crybabies Rs.