As the Obama Administration makes public its short list of potential nominees to replace John Paul Stevens on the Supreme Court, politicians on both sides of the aisle are preparing to politicize the nomination. Republicans have been clear since Steven’s retirement that they will not rule out a filibuster. It is widely expected that they will attempt to portray any nominee from Obama to be a radical liberal activist jurist and use it as an election issue.
Democrats are now indicating that they believe the best defense is a good offense, and one they can carry into the fall. With the unpopularity of decisions like Ledbetter v. Goodyear, undone by subsequent legislation, and Citizens United, Democrats intend to use the nomination process to attack conservative activism on the high court.
From the Democratic side of the aisle, expect to hear that “conservative activists” Roberts, Scalia, Alito and Thomas have turned the Court into a corporate shill that places corporate interests above those of the average citizen. They will press the need to balance the Court with a justice who will look out for the interests of the common man/woman in the face of dangerous pro-corporate activism from the right. As reported at Politico:
“Democrats hope to turn the upcoming Supreme Court confirmation hearings into a referendum of sorts on controversial recent decisions by the Roberts court — portraying the conservative majority as a judicial Goliath trampling the rights of average Americans.”
Again from the Politico article:
“….the administration and congressional aides are gravitating toward a strategy that goes beyond the goals of a run-of-the-mill confirmation fight – to define a corporations-vs.-the-common-man battle between Democrats and the high court.”
The strategy is to put Democrats and the administration clearly on the side of the “common man”, with the Supreme Court’s conservative bloc as the radical bogey man, then tying that bloc on the Court to the Republicans. Presumably internal polling shows there will be a receptive audience among the voting public if Democrats pursue such a populist approach. For those who wish to review one person’s explanation of judicial activism, both liberal and conservative, heading into the nomination/confirmation process, my three part series on the subject is here, here and here.
Judicial activism has negative connotations with a majority of voters. Whichever party can most effectively raise judicial activism as an issue against the other will have an election issue working to its advantage. The activism debate likely to unfold in the confirmation process promises to be a carefully calculated political set-up for the fall – on both sides of the aisle.
[Author’s Note: potential nominees acknowledged to date include Solicitor General Elena Kagan, Judge Diane Wood, Judge Merrick Garland, DHS Secretary Janet Napolitano, Michigan Governor Jennifer Granholm, Judge Sidney Thomas and Georgia Chief Justice Leah Ward Sears. Image above is the courtroom of the United States Supreme Court.]
Cross posted at Elijah’s Sweete Spot where COMMENTS/DISCUSSION are Disqus™ enabled.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.