Bench Memos

Obama’s Unbelievable Strategy to Take Control of the Supreme Court

In what appears to be an unprecedented move, SCOTUSblog is giving space to President Obama to frame the issues for his nomination to the Supreme Court. As Joe Biden might say, it’s a bunch of malarkey. Let’s get to it.

He gets off to a bad start: “The Constitution vests in the President the power to appoint judges to the Supreme Court.” Almost true. The Constitution does say that the President has plenary power to nominate judges, but it also says that the appointment power (i.e. actually delivering the commission of office) depends on the Senate’s “advice and consent.” The appointment power can only be exercised with the advice and consent of the Senate, whereas the power to nominate is purely executive​. In fact, nearly the whole statement makes the same intentional mistake, referring to the Presidential power simply as appointment when in fact he only has unfettered power to nominate.

Then after a bit of boilerplate about qualifications, he takes an obviously insincere stab at sounding moderate (emphasis added): “Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.”

Nobody believes that. Not. For. A. Minute. Set aside that Obama has already ruled out appointing a moderate to replace Justice Scalia. Do we really think that this president, faced with an opportunity to create the most liberal Supreme Court in decades, is going to risk nominating someone who will faithfully interpret the Constitution?  Do we really think liberal special interest groups wouldn’t run him out of town on a rail if he did?

If you are still inclined to believe Obama words, let’s review some Obama deeds. His first Supreme Court nominee, Justice Sotomayor, famously reassured Senators during confirmation hearings that she “accepted and applied” the critical Second Amendment case of District of Columbia v. Heller while a judge, but once on the Supreme Court, Sotomayor joined her liberal colleagues to argue that Heller never should have affirmed an individual right to bear arms for self-defense in the first place. His second nominee, Justice Kagan, likewise told the Senate during solicitor general confirmation hearings that “There is no federal constitutional right to same-sex marriage.” But she backtracked on that in her nomination hearings for the Supreme Court, and after she was confirmed to the high court, she voted to create such a right.

Anyway, after trying to claim the high ground, the statement creates an escape hatch for all of his previous statements about fidelity to the law, claiming that judges must have “life experience earned outside the classroom and the courtroom” that “suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives[.]” Aside from ruling out an academic, this paragraph opens up the prospect of a nominee with no fixed judicial philosophy who can be receptive to the needs of liberals in the future. Instead of couching the extremism in terms of a “living constitution,” though, the statement frames it as a question of “understanding” people’s lives in “a big, complicated democracy, and in rapidly changing times.” The obvious message is: Fellow liberals, don’t worry; I’m confident that this person will manipulate legal principles to achieve “just” and “fair” (by which he means “progressive”) outcomes.

The Administration is already working hard to portray their eventual nominee as a moderate, but don’t buy it. He or she will be anything but.

This post has been updated.

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