Full Court Press
In Slate, Richard L. Hasen has a piece on how Obama should run in 2012 on the Supreme Court--Scalia et al are getting old and may be retiring.
I've been hearing this argument from the left for a long time now, but it just won't wash. It's hard to get the public excited about the Court in either direction. The economy, education, war, health care--people will vote on those issues--while the Court seems much more distant and less important in our everyday lives.
Nixon was able to run against the Court because for years they'd been part of a revolution that went strongly against what the middle preferred. Decisions such as those that banned prayer in school and allowed for more indecent material to be sold were seen as a direct assault. Above all, a series of decisions that gave more rights to the accused drove people crazy. With a rising crime rate, it was easy to turn this anger into votes for Republicans.
The present-day 5-4 majority that leans right isn't going anywhere near that far, and even their unpopular opinions don't create anything like the controversy of the Warren Court's.
Look at their positions in comparison with the public's. On abortion, the liberals on the court are to the left of the public, while the conservatives are in the middle. On affirmative action, the liberals are to the left while the conservatives are in the middle. On crime (which can still be a powerful political issue) the liberals are to the left while the conservatives are in the middle.
There are other issues harder to pin down, but they're not flashpoints that will get anyone excited except for the liberal base who are already voting Obama.
Obama is free to run against Scalia if he likes, but my guess is his pollsters will tell him to try a different strategy.
posted by LAGuy @ 12:20 AM
3 Comments:
I'm especially surprised to see folks on the left thinking they can run on "Citizens United." The public already sees hundreds (thousands) of campaign ads during election season. The argument has to be you (the public) are too stupid to hear ads paid for by companies (even though most of you work for companies).
Citizens United is a particular buggaboo for the left precisely because they do think the American public is simple-minded and easily duped. But that argument doesn't sway that same public. Plus, the counter argument is readily understandable to the general public - free speech means free speech, by single people and groups of people, even if that group happens to incorporate themselves under state laws.
I would be surprised if Scalia resigns. In the last two decades, conservative and liberal justices have deliberately waited until a president on "their" side is in office before retiring. That's one more unfortunate side-effect of a court that legislates.
Another side-effect, of course, is that starting with Bush II, presidents have appointed very young justices.
So as long as we don't have more than two consecutive Democratic or Republican presidential terms, we can expect that each of the seats on the court will keep its ideological flavor for the foreseeable future, except in the case of a justice's sudden death.
Suppose Obama serves two terms and is succeeded by a Republican. Scalia can then retire on his 81st birthday, in March 2017. Would he enjoy retiring sooner? Surely. But would he actually consider retiring under Obama, knowing that this will undo everything he has been trying to accomplish for his entire life? I doubt it.
I agree youth, relatively speaking, is prized in nominees, which is why I think Obama will pick 49-year-old Elena Kagan.
I don't think anyone is talking about Scalia resigning. I think they're talking about a sitting conservative justice dying.
The fact that justices wiat until their side is in office makes it clear, if it already weren't, that they're not just partisan (even though they may believe their side is the nonpartisan side) but that they also understand that the whole situation is about partisanship. And even though there's regularly been up to 7 justices named by Republicans, "conservatives" often turn into "liberals" (but never the other way around) so the court has never truly been more than 5-4 conservative, if that. There's a decent chance a one-term Obama can change the balance, and an excellent chance a two-term Obama will.
But Larry gets one thing wrong. Whether the President is conservative or liberal, Scalia will not retire. He loves his job and will probably die while doing it (or perhaps will be so sick (physically or mentally) that he'll have no choice.
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