Changing the Dynamics of Making Judicial Appointments
What should alarm us most is not the perception of partisan slant in these choices, but the fact that they never fail to surprise us. Knowing we can reliably list John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito as our "conservative judges" with John Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg as the "liberals" is the most compelling evidence that this apple is rotting at its core. Our ability to consistently predict how each will vote on any given subject has left Anthony Kennedy in the position of effectively acting as a one man arbiter of what shall or shall not pass constitutional muster.
Rather than calling for more appointments that appeal to our personal, partisan interests, we should instead be encouraging the selection of new candidates that will occasionally surprise or dismay us, but always reassure us of their competency through strong, well researched, rational opinions on each ruling.
Without wishing ill on anyone, it should come as no surprise if President Obama winds up filling multiple seats on the Supreme Court bench. The most commonly mentioned name is, of course, that of Ruth Bader Ginsburg. Having just celebrated her 76th birthday last week, Justice Ginsburg recently underwent cancer surgery and is now embarking on a regimen of chemotherapy treatments. Conservatives may not feel inclined to balk much if Obama replaces her, though, no matter whom he selects.
Ginsburg has long been recognized as the "liberal lioness" of the court, and even if the president tapped someone who ruled in favor of issuing condoms to gay hamsters in Catholic schools across the nation, the makeup of the court would remain relatively intact.
A similar sentiment could hold sway if Stevens or Breyer --at ages 88 and 70 respectively -- choose to step down. But what if Antonin Scalia, himself in his seventies, decided to retire or suffered a severe medical mishap? Even Chief Justice Roberts, seemingly youthful and hearty at 54, gave everyone a scare in 2007 when he had a second benign idiopathic seizure and fell from a dock at his vacation home.
Should Barack Obama be called upon to fill one of those positions, a battle royale will be in the offing and the country will once again be bloodied and bruised.
I would encourage our new president to abandon the pre-approved candidate lists of traditional party screeners and chart a new course in keeping with his campaign promises of a post-partisan nation. There are justices out there who will have doubtless enraged politicos on both sides of the aisle at times but received consistent approbation from their peers for their well reasoned, thoroughly documented, and concisely written opinions. The problem is you won't find their names by consulting the RNC or the DNC. We deserve better than we've been getting and only the president is in a position to raise the bar.
If Barack Obama truly wishes to write his legacy large on the pages of history, this is one area where he could do so without being fettered by the likes of the House and Senate majority leaders. He owes us that much, and he should step up to this awesome responsibility and deliver, for the benefit of the nation he seeks to serve.