Supreme Court Changes Coming

Given that the liberal Left Obama administration holds little regard for the Constitution, and that the liberal Left often resorts to judicial activism to enact their agenda (since it's frequently not popular, nor legal), it is a big deal that there will soon be an opening on the Supreme Court:

Justice David Souter will leave the Supreme Court at the end of this term, somewhat unexpectedly, at the relatively young age of 69.  Expect much wailing and gnashing of teeth by conservatives over Souter's potential replacements, but the real problem falls on Barack Obama.  Despite his appointment by George H. W. Bush, Souter reliably stuck to the liberal side of the court, and his surprise retirement gives Obama little chance to change the court.  It does provide him with a raft of headaches, however:

Souter, 69, hails from the court's relatively liberal branch, so his retirement is unlikely to represent a deep shift in the balance of power on the court, but rather a renewal of the left end of the bench.

Obama will face competing imperatives in replacing him, including the pressure to appoint the first Hispanic to the Supreme Court and his own ties to prominent legal academics beginning with his years at Harvard Law School.

Obama also is likely to face pressure to add a woman to join the court's lone remaining female jurist, Ruth Bader Ginsburg. Several names emerged quickly Thursday night, including federal Judge Sonia Sotomayor of New York and Elena Kagan, Obama's solicitor general.

Either way, Obama should have wide latitude is picking who he wants to replace Souter. The recent switch of Sen. Arlen Specter from Republican to Democrat could account for a filibuster-proof 60-vote majority, should Minnesota's Al Franken be seated as expected.

The gnashing of teeth gets its best representation by Bench Memos blogger Ed Whelan, excerpted at The Corner:

[I]n coming years, Souter's replacement may well provide the fifth vote for:   — the imposition of a federal constitutional right to same-sex marriage; — stripping "under God" out of the Pledge of Allegiance and completely secularizing the public square; — the continued abolition of the death penalty on the installment plan; — selectively importing into the Court's interpretation of the American Constitution the favored policies of Europe's leftist elites; — further judicial micromanagement of the government's war powers; and — the invention of a constitutional right to human cloning.   American citizens have various policy positions on all these issues, but everyone ought to agree that they are to be addressed and decided through the processes of representative government, not by judicial usurpation.  And President Obama, who often talks a moderate game, should be made to pay a high price for appointing a liberal judicial activist who will do his dirty work for him. 

[Obama] will face many competing pressures in selecting a replacement.  Supreme Court picks are high-profile affairs, and this will test Obama far more than his previous appointments — many of which have been disasters, like Tim Geithner, Tom Daschle, and the rest of the tax-evaders and lobbyists he's picked.  Hispanics will want a representative voice on the court, and women will want to gain back the second seat that they lost with Sandra Day O'Connor's retirement.  Blacks might expect Obama to appoint another African-American.  Meanwhile, in the Senate, Obama will be expected by some to play the bitter partisan game that has existed ever since Ted Kennedy kneecapped Robert Bork, and expected by others to pick someone in the middle ground to end those games.

The biggest tension will come from the far-Left activists of Obama's party.  They're losing a stalwart.  They can't afford to have Souter replaced by a middle-ground justice who may not vote as reliably liberal as Souter.  In fact, that will be Obama's problem for all of the likely retirements on the Court — Ruth Bader Ginsburg and John Paul Stevens.

Based on Obama's appointments thus far, expect a mediocre candidate that will be just middle enough to get a few Republicans on board.  Don't expect it to go quietly, but the Republicans probably won't stage any extraordinary action to block it, unless something arises like tax problems or other issues that rise to incompetence or corruption.  That's actually the way presidential appointments should be handled, as elections have consequences.  After the dust settles, the court will be in exactly the same position as it is now, but in the meantime the GOP will have had an opportunity to show Obama as no post-partisan moderate but as a liberal idealogue.  Elections do have consequences — and so do appointments.

We talked about this before the election, and the fact that most of the liberal justices on the Court will be the first ones to leave under the new administration.  For a brief rundown on some of the leading candidates, check out Michelle Malkin's synopsis here (it ain't pretty).

Legal Insurrection raises an intriguing point about Specter's recent defection from the GOP which could have a big effect on this appointment:

Everyone, including me, has been blogging about how Specter defecting to the Democrats puts the Democrats close to a filibuster proof majority in the Senate, potentially allowing Obama to push through his agenda. And this seems true on most subjects.

But ironically, Specter's defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here's the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter's retirement was in play:

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf's post is to Congress Matters, which has the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTE

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he's just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

Knowing the tendency of liberals -- especially in Congress -- to play by their own rules rather than the real ones, I have no doubt that they'll find a way to strong-arm things into their favor.  Still, it could prove educational to watch, and another great illustration of how liberals operate.  It could also be very interesting to see if Republicans are willing to stand firm on this most important of issues.  I have about as much faith in Republican Senators to stand firm as I do in Democrat Senators to act ethically, so who knows what will happen?  We'll just have to wait and see.  But, it's definitely something to watch because it's a virtual guarantee their decisions in the next few years will affect your daily life in huge ways.

There's my two cents.