Tag Archives: Supreme Court

How Will The Supreme Court Rule Regarding Obamacare?

How should the Supreme Court decide regarding the constitutionality of Obamacare?

I have no idea. But even if I did, my opinion wouldn’t be worth much. After all, I’m a presidency scholar and this is a blog about presidential power, broadly defined. But I’m confident that I understand how they will decide the case – and it’s not likely to have much to do with the wording of the Constitution, or related case law for that matter.

For those of you living under a rock, the Supreme Court has just concluded the third and final day of hearings regarding the constitutionality of the Patient Protection and Affordable Care Act – more popularly known as Obamacare – the controversial health care reform legislation passed by a Democratically-controlled Congress and signed into law by Obama in March, 2010. On Monday, the Court’s deliberations centered on whether the suit against Obamacare brought on behalf of attorney-generals and governors from 26 states was justiciable at this time. (The key issue here is whether the fine for not buying health insurance as mandated under Obamacare is a “tax” or a penalty. If the former, an argument can be made that the case cannot yet be heard, since no one has actually paid that tax penalty, and won’t until 2014 at the earliest. However, neither the law’s proponents nor opponents want to delay a Supreme Court decision under this reasoning, and the justices seemed skeptical that the case should not be heard.) Yesterday the Court heard arguments regarding the constitutionality of the individual mandate – the provision in the law that says everyone must have health insurance, or pay a financial penalty. Today’s hearing centered on the issue of severability – whether all of Obamacare must fall if the mandate is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.

In listening to these hearings, and reading the abundant commentary, it becomes quite clear that the Constitution or related case law isn’t going to be the determining factors in whether a majority of the Court finds Obamacare constitutional or not. To be certain, when rendering their verdict, the justices will undoubtedly reference the Constitution as well as previous court cases such as Gonzales v. Raich and Wickard v. Filburn and U.S. v. Comstock. That is, they will ground their opinion explicitly in the meanings they attach to constitutional phrases, such as “necessary and proper” and “interstate commerce.” And they will buttress their interpretation of these ambiguous phrases by citing these and other court cases.

But if the issues were as clear cut as both opponents and supporters of Obamacare would have us believe, the case probably wouldn’t be before the Supreme Court today. In truth, as if often the situation with controversial legal cases, there are merits on both sides of the argument. That’s why the 11^th Circuit Court of Appeals (which voted 2-1 to overturn the mandate) and three district federal courts (two of which upheld Obamacare while a third did not) rendered different and not wholly reconcilable legal opinions on the matter. (And I’m sure I’m missing other court opinions on the matter, but you get my point – judges and other legal experts are divided!)

If a reading of the Constitution and legal precedent is not decisive, then how will the nine Supreme Court justices go about deciding the case? By relying on their own political preferences and attitudes against the backdrop of public opinion. And, as a political institution, that’s how the Court should arrive at this decision. Whenever I make this argument, I understand that the legal purists among you recoil in horror, in the belief that politics should play no role in Supreme Court proceedings. Instead, you want the justices to behave like priests in robes, ruling ex cathedra from their legal temple without concern for partisanship or personal preference.

Dream on teen queen! That view is wholly unrealistic and not even desirable. For starters, justices are selected through an openly partisan process based in part on their political views; studies show that Democratic presidents overwhelmingly nominate Democratic judges, and Republicans opt for Republican ones. They do so, presumably, in the belief that judges who share their partisan affiliation will vote in the “correct” way. (That doesn’t mean they always get it right, of course! See David Souter.) Moreover, because the Court’s power rests primarily on the perceived legitimacy of its rulings, it can’t help but pay attention to public opinion. This is not to say the Court merely reads the latest polls and rules accordingly. But it does care about prevailing public sentiments, and most studies suggest that Supreme Court rulings and public opinion are rarely too far out of synch. This should not surprise us – remember, justices come of age, politically speaking, under the same circumstances that shape the political views of many of their generational cohort. For all these factors, then, we shouldn’t be surprised that when trying to parse the meaning of ambiguous constitutional phrases, such as “necessary and proper” or “interstate commerce” as applied to complex and novel issues like health care spending and insurance mandates that justices will fall back on their own broad ideological leanings. How else can they be expected to reach a verdict?

Consider one of the key issues at the heart of this case: whether Obamacare creates a form of commerce and then forces individuals to buy a product, or whether it simply regulates a health care market in which everyone will, sooner or later, participate. Where one comes down on this, I suspect, turns in large part on one’s broader ideological views regarding the role of government in the economy and in one’s private life.

So, if I am right, what does this suggest regarding how the Court will rule? I’ll let others peer into the tea leaves of the justices’ questioning, or parse the implications of previous court rulings. For me, the best evidence is the previous lower court rulings on this case. If I’m counting correctly, with two exceptions every federal justice appointed by a Republican president has ruled against some aspect of Obamacare, while – with one exception – every justice appointed by a Democratic president has voted in its favor. This follows on the heels of the congressional vote that saw every Republican vote against the health care bill. Why should this change in the Supreme Court? I don’t think it will. My guess is the four Democratically-nominated justices – Breyer, Ginsburg, Sotomayor and Kagan – will vote to uphold Obamacare. The Republican-nominated ones – Scalia, Kennedy, Thomas, Alito and Roberts will vote against the mandate, although I suspect at least some of them will allow the rest of the law to remain in place even without a mandate. If I am wrong about any of these votes, it is probably Kennedy’s – his questions on Day 2 seemed to suggest he was willing to accept the government’s argument that health care is a distinctly different type of commerce, one in which an individual’s decision not to buy insurance clearly impacts the financial standing of the insurance holders. I should be clear – I base this prediction not on any deep knowledge of the relevant constitutional law, or after reading the transcripts or listening to the audio of the oral arguments. So don’t bet the retirement fund on what I write.

What if I am correct and the Court rules against the mandate by a 5-4 vote? Dahlia Lithwick argues at Slate.com that if a closely divided Court does rule in such a blatantly partisan manner, it risks further undermining its legitimacy which was already damaged due to its decisions in Bush v. Gore and more recently with the Citizens United case. Lithwick notes that “The court likes to pretend it’s completely above public opinion, inured to the momentary zigs and zags of the polls. But most of us know that nothing could be further from the truth.” Citing a Bloomberg News national poll showing that 75 percent of Americans expect the Supreme Court’s decision regarding Obamacare to be influenced by the justices’ personal politics, Lithwick warns that “To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—prove that 75 percent correct, and erode further the public esteem for the court.”

The problem with Lithwick’s reasoning is that polling consistently shows that a plurality of Americans opposes Obamacare. To be sure, some of that opposition is rooted in the belief among liberals that the legislation doesn’t go far enough, and the degree of opposition depends in part on survey question wording. But it is safe to say that at no point since the legislation passed Congress has it received majority support. Much of that animosity centers on the individual mandate whose coercive nature – while perhaps economically necessary to make Obamacare feasible – cuts against the grain of many Americans’ deep-seated cultural aversion to what they perceive as government infringement on individual freedom. So it’s not clear to me that a closely-divided 5-4 decision against Obamacare will do much to impact public opinion toward the Court.

Keep in mind that public approval of the Court has declined a bit recently, but that decline is due to increasing dissatisfaction – but for different reasons – from liberals and conservatives.

About a third of Democrats generally feel the court is too conservative, while half of Republicans hold the opposite view. Independents come down in between although a slight plurality think the court is too liberal as opposed to too conservative. Most independents, however, think the Court’s ideology is about right.

Given this preexisting partisan divide, it seems that barring a unanimous decision, how the Court rules regarding Obamacare is likely to be viewed by members of one party as primarily a partisan-driven decision. Those in the other party will view it as correctly decided. However, it is certainly plausible that many independents who are not sure where to come down on the issue will back the court, no matter what it decides. Put another way, when it comes to Obamacare, at least some of the public may be closely divided, but not necessarily deeply divided.

Looking ahead, the Court is likely to render its decision sometime this summer, near the end of its current session. That will be just as the nominating process is winding down (I think!) but before the general election heats up. No matter how the Court rules, Obamacare is likely to be an important issue in the presidential election, just as it was in the 2010 midterms. But it’s hard to see how the Court’s verdict can make an already divisive issue even more polarizing.

Will Kagan Be Confirmed?

In thinking in an earlier post about Justice Stevens’ replacement, I suggested that Obama would likely choose the most liberal woman he could get through the Senate. I had in mind either his eventual choice, Elena Kagan, or Appeals Court Judge Diane Wood. My guess is that Obama would have preferred Wood, who has a demonstrably more liberal outlook than Kagan, but at age 59, Wood’s judicial shelf-life is likely shorter than Kagan’s, who is only 50. So Kagan, currently Obama’s Solicitor General and the former Dean of the Harvard Law School, gets the nod.

The question now becomes: will Kagan be confirmed by the Senate? Note that she has already gone through Senate scrutiny once, when she won confirmation as Obama’s Solicitor General in March, 2009 by a vote of 61-31. Both supporters and opponents of her nomination as Solicitor General, however, have noted that they believe that the criteria for a lifetime appointment to the nation’s highest court differ from considerations for a political appointee who leaves office with the president. So we can’t necessarily use the previous vote as a benchmark for predicting her court nomination vote

As a court nominee, Kagan brings several strengths to the table: she has some executive branch experience, both as solicitor general and from her four years working as a White House legal counsel and domestic adviser to President Clinton. Presumably she possesses a greater appreciation for the executive branch’s perspective on court rulings, particularly when it comes to implementing those decisions. Lacking time on the bench she has very little in the way of a judicial paper trail that can be used against her. Some progressives may cite an abortion memo she wrote for Clinton as a mark against her, but I doubt any Senate Democrats will hold this against her. And in her brief stint as Dean of the Harvard Law School, she reportedly demonstrated skill at coalition building.

At the same time, however, some of these strengths can also be viewed as weaknesses. Despite Senate Judiciary Chairman Pat Leahy’s claim that Kagan will bring much needed diversity to the Court, she in fact has spent most of her professional life cloistered in academia, and her Ivy-League education (Princeton B.A., Harvard Law School J.D.) doesn’t exactly inspire confidence that she understands the concerns and hopes of Mr. and Mrs. Joe Sixpack. If confirmed, she will add still another Harvard law degree to a bench composed solely of Harvard or Yale-taught judges. As Dean of Harvard Law School Kagan became embroiled in the “Don’t Ask , Don’t Tell” controversy by supporting the school’s policy of banning military recruiters from campus as long as the military prevented openly gay individuals from serving. Harvard’s policy was rescinded only after Congress, with the support of the Supreme Court, threatened to block government aid to the schools who prevented the military from recruiting on campus. And there is undoubtedly other material in her otherwise sparse legal writings and decisions as Solicitor General that can be used against her.

Is this enough material to mount a challenge to Kagan’s nomination? It is if the Republicans view opposition to be in their political interest. Frances Lee, a political scientist at Maryland, has recently written an interesting book titled Beyond Ideology: Politics, Principles and Partisanship in the U.S. Senate in which she argues that in this era of strongly unified congressional parties, the electoral fortunes of both Democrats and Republicans are increasingly linked to the President’s ability to get his legislation through Congress. Lee’s argument, I think, can be extended to a president’s judicial nominees. As a party, Democrats benefit if Obama’s nominee is confirmed, and Republicans gain if her confirmation is blocked. This means that as we head into the stretch run to the November midterm, Republicans are less likely to view Kagan’s nomination in terms of her judicial philosophy, since she isn’t likely to change the ideological balance on the Court in any case, and instead use the confirmation hearings as an opportunity to remind voters why Republicans offer a viable alternative to the Obama-led Democrats. The key question becomes how to frame their opposition. In my view, Kagan’s weakness is not her judicial record or paper trail – she doesn’t have much of one – or her ideology (most observers peg her as a pragmatic liberal but there’s a lot of squishiness here). Instead, I think Republicans will attack her for being part of the northeast intellectual “elite” that lacks empathy with “ordinary” Americans across the country. They will try to paint a picture of Kagan in which her upbringing, her professional life, her opposition to military recruitment and her F.O.O. (Friend of Obama) credentials will all be combined to portray her as a judge who will be out of touch with the interests of the “common people” living in Smalltown, USA.

Will such a strategy work? Recall that Sonia Sotomayor was confirmed with a vote of 68-31. All Democrats who voted supported her. Nine Republicans, listed here, also voted for Sotomayor, while 31 – including then Republican Arlen Specter, opposed her. I’m assuming that no Republicans who opposed Sotomayor will vote for Kagan. That leaves the nine Republicans listed here as potential swing votes.

Republicans Voting to Confirm Sotomayor

Sen. Lindsey Graham (S.C.)
Sen. Lamar Alexander (Tenn.)
Sen. Christopher Bond (Mo.)
Sen. Susan Collins (Maine)
Sen. Olympia Snowe (Maine)
Sen. Richard Lugar (Ind.)
Sen. Mel Martinez (Fla.)
Sen. Judd Gregg (N.H.)
Sen. George Voinovich (Ohio)

As a woman and an Hispanic, it was hard for moderate Republicans to vote against Sotomayor. I think it will be easier for some of them to oppose Kagan, so I expect the Republican “no votes” to increase above 31. How much above? I’ll set the over/under at 35 votes (all Republican) in opposition.

Ok, it’s time to weigh in. Give me your thoughts on the Kagan selection, and the likely number of votes in opposition to her confirmation.

As usual, an “It’s the Fundamentals, Stupid!” Presidential Power t-shirt – modeled here by Mike Norris, a previous contest winner – is at stake. (Notice the “Thanks Teddy” poster in the background of Mike’s picture – undoubtedly a reference to Teddy Williams, the great Red Sox outfielder). In case of ties the winner will be determined by a coin flip.

Contest open until Friday – get your votes in!

Why Obama Should Pick an Appellate Court Justice to Replace Stevens

With the announcement that Justice Stevens is stepping down from the Supreme Court at the end of the current court session, President Obama has a second opportunity to fill a Court vacancy. When his first opportunity arose last year, I did two things: first, I offered an “It’s the Fundamentals, Stupid” t-shirt to anyone who could predict the likely nominee. That contest was won by Conor Shaw who, appropriately enough, is now attending law school at the University of Chicago. I also argued, in this post, that if Obama really stood for change, he should nominate a politician, as opposed to an appellate court judge, to the Supreme Court. Predictably, the “change” candidate ignored my advice and instead nominated yet another appellate court judge, Sonya Sotomayor, who was easily confirmed to the Court by the Democrat-controlled Senate.

As I noted then, Sotomayor’s selection and confirmation made it 17 of the last 20 nominees (by my unofficial count), dating back to Nixon’s administration, who were sitting federal appellate judges prior to being nominated to join the Supreme Court. Here’s the chart I presented then – note that I didn’t include the aborted Harriet Miers nomination (she voluntarily withdrew before the Senate took up her nomination). Bold-faced type indicates the nominee was a politician:

Nominee	Year	Appointing President	Position Held
Hugo Black	1937	Roosevelt	U.S. senator
Stanley Reed	1938	Roosevelt	U.S. solicitor general
Felix Frankfurter	1939	Roosevelt	Law professor
William 0. Douglas	1939	Roosevelt	SEC chairman
Frank Murphy	1940	Roosevelt	U.S. attorney general
James Byrnes	1941	Roosevelt	U.S. senator
Harlan Stone (C.J.)	1941	Roosevelt	U.S. Supreme Court associate justice
Robert Jackson	1941	Roosevelt	U.S. attorney general
Wiley Rutledge	1943	Roosevelt	Federal appellate judge
Harold Burton	1945	Truman	U.S. senator
Fred Vinson (C.I.)	1946	Truman	U.S. Treasury Secretary
Tom C. Clark	1949	Truman	U.S. attorney general
Sherman Minton	1949	Truman	Federal appellate judge
Earl Warren (C.I.)	1953	Eisenhower	Governor of California
John M. Harlan	1954	Eisenhower	Federal appellate judge
William Brennan	1956	Eisenhower	N.J. S. C. Judge
Charles Whittaker	1957	Eisenhower	Federal appellate judge
Potter Stewart	1958	Eisenhower	Federal appellate judge
Byron White	1962	Kennedy	Deputy attorney general
Arthur Goldberg	1962	Kennedy	U.S. secretary of labor
Abe Fortas	1965	Johnson	Private practice, presidential adviser
Thurgood Marshall	1967	Johnson	U.S. solicitor general
Abe Fortas (C.J., withdrew)	1968	Johnson	U.S. Supreme Court Associate Justice
Homer Thornberry (withdrew)	1968	Johnson	Federal appellate judge
Warren Burger (C.J.)	1969	Nixon	Federal appellate judge
Clement Haynsworth (rejected)	1969	Nixon	Federal appellate judge
G. Harrold Carswell (rejected)	1970	Nixon	Federal appellate judge
Harry Blackmun	1970	Nixon	Federal appellate judge
Lewis Powell	1971	Nixon	Private practice
William Rehnquist	1971	Nixon	Asst. attorney general
John Paul Stevens	1975	Ford	Federal appellate judge
Sandra Day O’Connor	1981	Reagan	Arizona appellate judge
William Rehnquist (C.J.)	1986	Reagan	U.S. Supreme Court associate justice
Antonin Scalia	1986	Reagan	Federal appellate judge
Robert Bork (rejected)	1987	Reagan	Federal appellate judge
Douglas Ginsburg (withdrew)	1987	Reagan	Federal appellate judge
Anthony Kennedy	1987	Reagan	Federal appellate judge
David Souter	1990	Bush I	Federal appellate judge
Clarence Thomas	1991	Bush I	Federal appellate judge
Ruth Bader Ginsburg	1993	Clinton	Federal appellate judge
Stephen Breyer	1994	Clinton	Federal appellate judge
John Roberts (C.J.)	2005	Bush II	Federal appellate judge
Samuel Alito	2006	Bush II	Federal appellate judge
Sonia Sotomayor	2009	Obama	Federal appellate judge

The key point is that presidents at one time used to select politicians to the Court, but since Nixon’s administration that almost never happens.

As the punditocracy debates the merits of those candidates who are apparently on the current short list, including their sexual orientation, I am tempted to simply rerun my previous post in favor of nominating a politician, rather than still another sitting appellate court judge. Of those individuals apparently on the current “short list” only Janet Napolitano fits my criteria. (Yes, yes, I hear you: what about Hillary Clinton? Don’t you realize she’s challenging Obama in 2012?)

Boiled down to the essentials, my argument is simple: the Court is, in essence, a political institution. Justices make arguments that, although based on legal reasoning and embedded within the body of law, are nonetheless at heart debates about political values and that for better or for worse, those rulings tend to track public opinion relatively closely. The best justices, therefore, are those who are skilled at political reasoning, persuasion and coalition building. Put another way, we’d rather have a court composed of Sandra Day O’Connors than of Antonin Scalia’s – not because O’Connor has a superior legal mind, but because her opinions tended to exhibit a very pragmatic orientation and were written with an eye toward bridging differences among the Justices.

I’m not the only one to make this argument, of course. See, for example, this recent Boston Globe editorial. Rather than make the same point again in the context of the current Court opening, however, I thought it might be more useful if I provided an opposing argument in favor of appointing still another appellate court judge. (After all, I’m always saying that what sets this political blog apart is my willingness to entertain opposing viewpoints!) Toward that end, see this recent opinion column by Charles Lane on the Washington Post website. Lane acknowledges that the Court is a political institution. But he notes that justices don’t merely pay lip service to legal precedent – by referencing previous cases and legal doctrine when issuing decisions, justices bolster the Court’s legitimacy as an “impartial” actor whose decisions do not flow strictly from the personal views of its nine members. I think this is an important point: whenever the Court does venture into the purely political thicket, its members’ motives are already questioned (think Bush v. Gore). Imagine if a Court of nine politicians overturned the individual mandates contained in the recently-passed health care bill – all hell would break loose. But that is precisely my point – I can see Scalia, in a strict reading of the law, arguing against the mandates. In contrast, a politician as justice would be less likely, I think, to jump into this political fray and instead would either decide not to take the case or would defer to the decision of Congress and the President and accept that mandates are constitutional.

Lane also makes two additional points to explain recent presidents’ tendency to nominate appellate court justices that have little to do with their legal background or expertise. The first is the supply-side to the nomination equation: there are 167 justices sitting on the appellate courts today, compared to only 59 at the end of World War II. So there is simply more legal talent out there from which to choose nominees. Second (and this is Napolitano’s problem), in the post-Bork politicized confirmation era, it is simply much more difficult to confirm a politician because they possess an extensive paper trail that can be used against them. In Lane’s words, “Politicians who, by definition, talk, write and cast votes on just about any issue under the sun are especially vulnerable.” O’Connor, although a former state legislator, benefited by the historic nature of her selection by Reagan to be the first woman justice on the Court. To be sure, appellate court justices have a voting record as well, but they can defend that record, Lane notes, by saying their rulings reflect the constraints imposed by adhering to statute or previous court decisions. This, by the way, may be what undermines Elena Kagan’s chances; although supposedly the current front-runner for the nomination, she may be handicapped by some of her decisions on legal cases while serving as Obama’s Solicitor General.

There is an additional factor at play here: Obama’s pragmatic streak. For all the talk about bringing change to Washington, he has been a remarkably conventional decisionmaker in terms of adhering to precedent and pursuing, whenever possible, a middle course of action. It may be expecting too much to believe he will break the string of 11 straight appellate court nominees. If he does, it will likely be because another pragmatic political factor, such as a desire to nominate an African-American woman, for example, trumps his inclination to play it safe by selecting an appellate court judge. In the end I expect him to pick the most liberal woman he can get through the Senate – that is, one who does not provoke a Republican filibuster. Who might that be? I’m open to suggestions.

Sotomayor, Obama and Presidential Power

And the streak continues. If, as news reports indicate (and the formal announcement should come within a few minutes) Obama will nominate federal New York appeals court judge Sonia Sotomayor to replace David Souter on the Supreme Court, it will make it 17 of the last 20 nominees (by my unofficial count), dating back to Nixon’s administration, who were sitting federal appellate judges prior to being nominated to join the Supreme Court. (This includes unsuccessful nominees). In the end, despite expressing sympathy with Senator Leahy’s preference to choose a justice from outside the “judicial monastery”, Obama chose to play it safe. The key phrase is: “Administration officials say Sotomayor would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.” Not elected experience – not experience in how the executive branch, or Congress, or the federal bureaucracy works. She was selected – as has been the case with the last 10 justices in a row nominated for the highest court – for her judicial credentials. I will leave it to others with more expertise than I to judge the merits of Sotomayor’s selection, but I note that the decision almost certainly turned on more than her judicial expertise. It was also almost certainly influenced by Obama’s recognition of the symbolic aspect of his choice of, and the potential political payoffs that will accrue from appointing, an Hispanic woman.

For the record, here’s a list of all Supreme Court nominees dating back to FDR’s presidency. Note the shift away from practicing politicians toward federal appellate justices during the last three decades – I’ve put the practical politicians in bold. From this perspective, Sotomayor represents anything but change.

Positions Held by Supreme Court Nominees at the Time of Their Nominations, 1937-2009 (Adapted from data gathered by David Yalof).

Nominee	Year	Appointing President	Position Held
Hugo Black	1937	Roosevelt	U.S. senator
Stanley Reed	1938	Roosevelt	U.S. solicitor general
Felix Frankfurter	1939	Roosevelt	Law professor
William 0. Douglas	1939	Roosevelt	SEC chairman
Frank Murphy	1940	Roosevelt	U.S. attorney general
James Byrnes	1941	Roosevelt	U.S. senator
Harlan Stone (C.J.)	1941	Roosevelt	U.S. Supreme Court associate justice
Robert Jackson	1941	Roosevelt	U.S. attorney general
Wiley Rutledge	1943	Roosevelt	Federal appellate judge
Harold Burton	1945	Truman	U.S. senator
Fred Vinson (C.I.)	1946	Truman	U.S. Treasury Secretary
Tom C. Clark	1949	Truman	U.S. attorney general
Sherman Minton	1949	Truman	Federal appellate judge
Earl Warren (C.I.)	1953	Eisenhower	Governor of California
John M. HarlaN	1954	Eisenhower	Federal appellate judge
William Brennan	1956	Eisenhower	N.J. S. C. Judge
Charles Whittaker	1957	Eisenhower	Federal appellate judge
Potter Stewart	1958	Eisenhower	Federal appellate judge
Byron White	1962	Kennedy	Deputy attorney general
Arthur Goldberg	1962	Kennedy	U.S. secretary of labor
Abe Fortas	1965	Johnson	Private practice, presidential adviser
Thurgood Marshall	1967	Johnson	U.S. solicitor general
Abe Fortas (C.J., withdrew)	1968	Johnson	U.S. Supreme Court Associate Justice
Homer Thornberry (withdrew)	1968	Johnson	Federal appellate judge
Warren Burger (C.J.)	1969	Nixon	Federal appellate judge
Clement Haynsworth (rejected)	1969	Nixon	Federal appellate judge
G. Harrold Carswell (rejected)	1970	Nixon	Federal appellate judge
Harry Blackmun	1970	Nixon	Federal appellate judge
Lewis Powell	1971	Nixon	Private practice
William Rehnquist	1971	Nixon	Asst. attorney general
John Paul Stevens	1975	Ford	Federal appellate judge
Sandra Day O’Connor	1981	Reagan	Arizona appellate judge
William Rehnquist (C.J.)	1986	Reagan	U.S. Supreme Court associate justice
Antonin Scalia	1986	Reagan	Federal appellate judge
Robert Bork (rejected)	1987	Reagan	Federal appellate judge
Douglas Ginsburg (withdrew)	1987	Reagan	Federal appellate judge
Anthony Kennedy	1987	Reagan	Federal appellate judge
David Souter	1990	Bush I	Federal appellate judge
Clarence Thomas	1991	Bush I	Federal appellate judge
Ruth Bader Ginsburg	1993	Clinton	Federal appellate judge
Stephen Breyer	1994	Clinton	Federal appellate judge
John Roberts (C.J.)	2005	Bush II	Federal appellate judge
Samuel Alito	2006	Bush II	Federal appellate judge
Sonia Sotomayor	2009	Obama	Federal appellate judge

As for Sotomayor, from here the path toward almost certain confirmation goes as follows: the Senate Judiciary Committee is slated to hold hearings sometime this summer (this involves both written depositions and of course open hearings), which should lead to formal Senate approval before Congress adjourns for its summer recess in early August. So Sotomayor will likely take her seat in time for the start of the new Court session on October 5. (I talk briefly about the likely politics of the nomination process below).

What is of more interest to me, however, is what her selection reveals about the basis of presidential power. Political scientists, like baseball writers evaluating hitters, have devised numerous means of measuring a president’s influence in Congress. I will devote a separate post to discussing these, but in brief, they often center on the creation of legislative “box scores” designed to measure how many times a president’s preferred piece of legislation, or nominee to the executive branch or the courts, is approved by Congress. That is, how many pieces of legislation that the president supports actually pass Congress? How often do members of Congress vote with the president’s preferences? How often is a president’s policy position supported by roll call outcomes? These measures, however, are a misleading gauge of presidential power – they are a better indicator of congressional power. This is because how members of Congress vote on a nominee or legislative item is rarely influenced by anything a president does. Although journalists (and political scientists) often focus on the legislative “endgame” to gauge presidential influence – will the President swing enough votes to get his preferred legislation enacted? – this mistakes an outcome with actual evidence of presidential influence. Once we control for other factors – a member of Congress’ ideological and partisan leanings, the political leanings of her constituency, whether she’s up for reelection or not – we can usually predict how she will vote without needing to know much of anything about what the president wants. (I am ignoring the importance of a president’s veto power for the moment.)

Despite the much publicized and celebrated instances of presidential arm-twisting during the legislative endgame, then, most legislative outcomes don’t depend on presidential lobbying. But this is not to say that presidents lack influence. Instead, the primary means by which presidents influence what Congress does is through their ability to determine the alternatives from which Congress must choose. That is, presidential power is largely an exercise in agenda-setting – not arm-twisting. And we see this in the Sotomayer nomination. Barring a major scandal, she will almost certainly be confirmed to the Supreme Court whether Obama spends the confirmation hearings calling every Senator or instead spends the next few weeks ignoring the Senate debate in order to play Halo III on his Xbox. That is, how senators decide to vote on Sotomayor will have almost nothing to do with Obama’s lobbying from here on in (or lack thereof). His real influence has already occurred, in the decision to present Sotomayor as his nominee.

If we want to measure Obama’s “power”, then, we need to know what his real preference was and why he chose Sotomayor. My guess – and it is only a guess – is that after conferring with leading Democrats and Republicans, he recognized the overriding practical political advantages accruing from choosing an Hispanic woman, with left-leaning credentials. We cannot know if this would have been his ideal choice based on judicial philosophy alone, but presidents are never free to act on their ideal preferences. Politics is the art of the possible. Whether Sotomayer is his first choice or not, however, her nomination is a reminder that the power of the presidency often resides in the president’s ability to dictate the alternatives from which Congress (or in this case the Senate) must choose. Although Republicans will undoubtedly attack Sotomayor for her judicial “activism” (citing in particular her decisions regarding promotion and affirmative action), her comments regarding the importance of gender and ethnicity in influencing her decisions, and her views regarding whether appellate courts “make” policy, they run the risk of alienating Hispanic voters – an increasingly influential voting bloc (to the extent that one can view Hispanics as a voting bloc!) I find it very hard to believe she will not be easily confirmed. In structuring the alternative before the Senate in this manner, then, Obama reveals an important aspect of presidential power that cannot be measured through legislative boxscores.

Of perhaps greater significance – not one of you predicted Sotomayor’s nomination, and thus no one is the recipient of an “It’s the Fundamentals, Stupid!” T-Shirt. I am deeply, deeply disappointed in all of you. If it were in my power, those diplomas that were handed out in the pouring rain would be rescinded. What kind of an education did you pay for? I’m shocked…SHOCKED!

ADDENDUM: Conor Shaw did, in fact, predict the Sotomayer nomination, and for precisely the right reasons, in my view (although he did try to slip in a second choice as well!) My apologies to Conor for overlooking his victory. He has singlehandedly restored my faith in the efficacy of a Middlebury College education! Conor – send me your t-shirt size…

Who Should Obama Nominate to Replace Souter? – It’s Not Who You Think

Who should Obama nominate to replace David Souter on the Supreme Court? In an earlier post, I hinted that political scientists have actually studied this question quite extensively, and their conclusions are not necessarily what one might expect. Many political scientists believe there are compelling reasons why Obama ought to avoid nominating someone who is currently a sitting jurist, such as an appellate judge at the federal level, and instead should pick a politician – preferably someone who has a background in elected politics – as the next Supreme Court nominee. It is a position that I share.

Why do I advocate nominating an elected politician rather than a “professional” jurist? For reasons that my former Harvard colleague Gordon Silverstein cogently spells out in this recent TNR piece. As Gordon argues, “While the instinct in choosing a justice for the highest court in the land is to find the most qualified judge or legal scholar, there is a powerful case to be made that the court very much needs an experienced elected official among its ranks. Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century.”

A more politically-savvy court, Gordon argues, would provide at least three benefits. First, it would reduce the number of split-decisions the Court renders because politicians are adept at using compromise and bargaining to achieve consensus. That, in turn, would provide more legal “heft” to Court decisions. Second, the Court’s decisions would be less likely to be cast in legal jargon centered on abstract theorizing and legal hair-splitting, and more likely to be expressed using easily accessible reasoning that the public understands. Third, justices would be more likely to understand the practical impact of their decisions, particularly as they pertain to implementation.

Gordon acknowledges that a Court dominated by politicians might exhibit weaknesses as well. In areas involving fundamental constitutional issues, one could argue that the Court ought not to be rendering decisions arrived at through bargaining and compromise. But this presumes that elected politicians are less capable than professional jurists in recognizing when such rights are at stake. I’m not convinced this is the case.

Note that the highest Court wasn’t always dominated by legal professionals. As David Yalof points out, of the 22 Supreme Court appointments made between 1937 and 1967, 12 of them went to individuals in the executive or legislative branches, as opposed to the judiciary. At least three other appointees were political insiders. Beginning with Nixon, however, presidents have increasingly ignored practicing politicians when making nominations and instead tapped those from the professional judiciary who possess extensive legal training. By my count, of the 19 nominees to the Supreme Court dating back to 1969, almost every one has been a sitting appellate federal judge.

The trend toward nominating professional jurists accelerated in the 1980’s with the increased polarization of Congress, against the backdrop of divided government, and the growing role of interest groups on both sides of the ideological divide in the nominating process. The new, more contentious process was evident beginning with Reagan’s unsuccessful effort to place Robert Bork on the Court. Yalof argues that the growth of the role of lawyers in the White House and the Justice Department has contributed to this trend as well, as they have provided much of the information on which presidents base their nomination choices. Lawyers, by instinct and training, prefer members of the legal profession.

The result is that Presidents are now encouraged to pick individuals with a strong legal background and relatively non-controversial opinions, rather than a politician who would make an easy target on partisan grounds alone but who, if Gordon is right, might bring real benefits to the Court.

The irony, as Yalof suggests, is that this shift in the type of nominee has made the Court less – not more – willing to defer to elected officials. As a result, the Court is more likely to be embroiled in legal controversy, which in turn insures that nomination politics are still more controversial, and that the Court’s decisions will continue to be divisive.

Obama has a chance to reverse this trend by nominating an elected official or someone with a practical understanding of politics. But will he do so? Publicly, he has expressed agreement with those, such as our own Senator Patrick Leahy, who are pushing for a nominee from outside the “judicial monastery.” The problem, however, is that Obama’s personal preference to pick someone who “understands that justice isn’t about some abstract legal theory,” is likely to collide with others’ desire to fill the position with someone meeting their own criteria. Most importantly, as a Democrat facing a Democratically-controlled Senate, he will be under strong pressure to pick a left-leaning judge. He also will face pressure from those pursuing their own brand of “identity” politics, in the form of a woman and/or Hispanic nominee. This will make it difficult for Obama to pursue his own preferences, whatever they may be. And, to date, Obama has shown little interest in spending political capital to change the way Washington works.

If news reports are credible, the short list of candidates is composed primarily, but not exclusively, of individuals who I would characterize as legal professionals. A partial but by no means exhaustive list initially included Sonia Sotomayor, an Hispanic who currently sits on the U.S. Court of Appeals for the 2nd Circuit; Elena Kagan, the current Solicitor General and formerly dean of the Harvard Law School and Diane Wood, a judge on the 7th Circuit Court of Appeals. In recent days, however, a couple of politicians, including Homeland Security chief Janet Napolitano and Michigan Gov. Jennifer Granholm, have made the media “possibility” list (as has California Supreme Court Justice Carlos Moreno.) Of course, it is in the administration’s interest to selectively leak names to curry favor with interest groups, and to keep the media guessing. Among this group, Kagan has perhaps the most inside connections, and the least visible judicial record. In short, she fits the mold of recent appointees – smart, and lacking a controversial record of judicial opinions. She would be the conservative choice and Obama, to date, has shown a propensity for taking the safe route. However, it may not be the politically feasible choice, given pressure from liberals and Hispanics.

So, who will it be? Will Obama actually push for real change when it comes to the Supreme Court, and opt for a politician? It is time to give away another “It’s the Fundamentals, Stupid” t-shirt. Send me your nominee, either in the comments section or directly by email. In the case of ties, the earlier respondent wins. As always, no wagering allowed, and employees of this blog cannot participate in the contest.