Some Mistakes Obama Can Avoid on SCOTUS

I’ve spent more than enough virtual ink wistfully laying out my dreams of ideal Supreme Court nominees, and I’ve reached the acceptance stage in the grief progression. There are no signs that our presidents are going to start ignoring partisan considerations and litmus tests. There was never any chance that George W. Bush was going to nominate a liberal – or even a moderate – to the Supreme Court, and there is zero chance that Barack Obama will nominate a moderate or a conservative. Neither would consider a truly independent-minded judge who will, on occasion, infuriate both parties in the interest of following the law.

No, with apologies to the gird your loins crowd, this scene is already scripted and we await only the names of the actors to arrive from Central Casting. Ed Schultz will get his wish when all is said and done. Obama will consider a list of significantly liberal, progressive-leaning judges and nominate one. The nominee will almost undoubtedly be a woman and possibly a minority on top of it, because identity politics will be unavoidable in this particular selection.

Any number of right-wing pundits and some of the members of the GOP in Congress will stamp their feet in frustration, declare that the end days have arrived and promise a battle to the death. Unfortunately for them, some Republican Senators are already looking toward 2010 and hearing footsteps in the hall, rightly concerned over the amazingly successful job Obama and Team Pelosi have done in painting them as The Party of No. They will also remember how often Bill Frist, among others, marched up and down the halls during the Bush years declaring that “a simple up or down vote” is due the president on his nominees.

And they’ll be correct, of course. Making court appointments is one of the major perks of becoming president. And when the nation’s voters hand you not only the White House, but also give your party generous majorities in Congress, your nominees are going to walk through, no matter how much bluster is on display from the minority.

With all of that said, though, the President can still avoid some of the pitfalls which await him and leave some of the truly rotten fruit out in the field. For starters, Obama can be sure to select an actual judge. I’ve heard names being bandied about which include governors, senators and other career politicians. Even if some of these people are still miffed that they didn’t get Joe Biden’s slot and you think the party owes them something nice, a SCOTUS bench position is not the door prize to give them. We need a tested, experienced hand, not a DNCC gadfly.

Obama can also have some previous opinions written by the candidate ready for public display. No matter what you may think of the nominee’s personal philosophy, they must be someone who can communicate eloquently and effectively, with the ability to write well-reasoned, clearly understandable decisions. These writings will become a permanent record and reference for future justices to follow for centuries to come. They must be of the highest quality possible.

The nominee should also be someone who has earned the respect of their peers in the judicial community, even if partisan politicians may scream and rant about them. They should have a solid record on the bench without worrisome numbers of cases where senior courts overturn their decisions, censure them or question their impartiality and temperament.

If Obama can simply manage these three things in his selection, be they ever so liberal, then I believe he will have done his duty to the best of his ability and earned our respect, however grudgingly given. If, however, this turns into some sort of Democratic Party dog-and-pony show, delivering a nominee who makes Harriet Miers look qualified, then we’re in for a long, unpleasant ride during the Obama administration.