Tuesday, July 06, 2010


For some reason, the lead story at Memeorandum right now is this, from the New York Daily News:

Bad news for Obama: Conservative Justice Kennedy tells pals he's in no rush to leave Supreme Court

President Obama may get liberal Elena Kagan on the Supreme Court, but conservative swing-voter Anthony Kennedy says he's not going anywhere anytime soon.

Justice Kennedy, who turns 74 this month, has told relatives and friends he plans to stay on the high court for at least three more years -- through the end of Obama's first term, sources said.

That means Kennedy will be around to provide a fifth vote for the court's conservative bloc through the 2012 presidential election....

But how great a loss is this? After the inevitable huge Democratic losses in November's midterms, how likely is it that the president is going to get anyone even remotely progressive onto the Court in the following years? Republicans won't even have a Senate majority, but they'll hold the House, the economy will still be miserable, and they'll have a hell of a lot more than the 41 senators they have now. They'll seek not only to rebuff Obama but to humiliate him. The appointment of anyone on a likely short list will probably be declared dead on arrival, subject to an inevitable filibuster -- and I could imagine the Republicans further rubbing Obama's face in it by providing him with a short list of confirmable appointees, all of them to Kennedy's right, most of them members of the Federalist Society.

The only relatively progressive appointee I can imagine having a chance after November would be Hillary Clinton, just because she's won favor in the heartland precincts where the teabagging voters who'll turn November into a wave election live. Republicans might try to revert to their old Hillary-bashing ways, but I think the Appalachian dwellers and others who cheered Hillary on in '08, with Republican encouragement, will be genuinely upset if that happens. Maybe Team Obama would understand that, and thus maybe Hillary would be the appointee if an opening does occur. Otherwise, Obama's going to have to either abase himself or leave a seat unfilled if there's a vacancy in the latter half of his term.


And regarding the current Court nominee, I'd say the most disturbing thing I read over the weekend was Jeffrey Rosen's New York Times op-ed about Oliver Wendell Holmes:

IN her Supreme Court confirmation hearings last week, Elena Kagan cited Justice Oliver Wendell Holmes, Jr. as her model of judicial restraint....

Ms. Kagan picked the wrong justice. Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold....

An aristocratic nihilist who once told his sister that he loathed "the thick-fingered clowns we call the people," Holmes believed that judges should vote to uphold virtually all laws, even the ones they hate....

I think Kagan's sentiments are generally liberal, but if Holmes is her model -- if she really believes that Justices should show "great deference to Congress" -- it frightens me, because she's going to be on the Court at a time when some extreme and bizarre right-wing legislation is going to become law.

What I mean is that she's going to be on the Court after Republicans control the House, the Senate, and the White House in the wake of the 2012 elections. I know, I know -- Obama can win and Democrats can regain their mojo if the economy turns around by then. But how likely is that? It's far more likely that we're actually going to hand over the reins to the Teabag/Fox News Party for at least two years -- and some of the laws that come out of that reign of terror are eventually going to come before a Supreme Court on which Kagan is supposed to be a counterweight to the dominant rightist zealots. But no; if at all possible, she's going to defer to Congress -- a Congress that may include dozens of Sharron Angles and Rand Pauls. That's not encouraging.

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