Supreme Speculations and Implications

Now that Justice Stevens has made it official that he will be resigning at the end of the current term, Barack Obama gets his second opportunity to make a lifetime appointment to the US Supreme Court.  As usual, the speculation is as rampant as the implications are huge.

The bulk of the speculation centers on what direction Obama will take.  Does he try to capture some of the political middle ground he’s lost in the eyes of the public over the past year, or does he go with his heart and pick someone as liberal as he is?

Of course the timing couldn't be worse for Senate Democrats.  They are already weary of political combat due to the battle over ObamaCare, which came in the aftermath of the fight over the stimulus, etc.  As a result, the Democrats in red/purple states that are up for re-election this year aren't too keen on having Obama pick anyone who might be deemed too radical.  They’ve seen the polls and would rather not add one more log to the growing fire of conservative activism in an election year.

But Obama can read polls to, and he's surely considering that the Republicans are likely to make some pretty big gains in the Senate this November.  He knows that if he really wants another radical liberal (which he does), now's the time to nominate them, rather than go with a moderate to satisfy some Democrat nerves.

If he was willing to throw down the gauntlet on something as radical as ObamaCare no matter what impact it would have on Democrats in Congress, you have to figure that he's willing to go full speed ahead with a radical liberal pick to the high court.  The damage to the Democrat majority is probably already a done deal.

So what do the American people think about all of this?  A recent Rasmussen poll finds that 39% think that the Supreme Court is "too liberal", 25% think it's "too conservative", and 27% think the balance is "about right".  But when it comes to their opinion of Obama's likely pick, 45% believe the eventual nominee will be "too liberal" and 41% say it will be "about right".  (Of course this is before that 41% finds out anything about the eventual nominee...).

As for the implications, they're huge, just as they are with any other Supreme Court appointment. In this case, the pick is to replace long time liberal Justice Stevens, which means Obama's pick isn’t likely change the roughly 5-4 moderate conservative bent of the Court.  However, it is likely to put another radical liberal in that seat for the next 30 years.

Obama knows full well that much of what he’s done and would like to do (ObamaCare for instance), is sure to end up before the Supreme Court, which means that much of what he sees as his legacy will be on the line.  The last thing he wants is a Justice that he can’t count on to sustain all of the elements of his government expansionist policies.

The mere fact that Obama gets to make his second selection to a lifetime appointment on the Supreme Court should be serve as another vivid reminder of the fact that elections have consequences.  The consequences of losing the White House in 2008 have meant a lost opportunity to replace two high court liberals with two conservatives, potentially ensuring a conservative direction to the court for decades to come.  Even if just one of the two would have turned out to be another Roberts or Alito the implications would have been tremendous, but alas…

When it comes to issues that will be impacted, of course there are the usual things to be concerned about, such as abortion, gay marriage, gun rights and free speech related issues, but the newer consideration is the impact on pending court cases by state governments against ObamaCare.

Unlike past confirmation hearings, the coming debate is likely to center on principles that have been largely absent (or at least under-represented) in the past, such discussions about state's rights, federalism, or the extent of Congress’ power under the Constitution's "commerce clause".  Is it constitutional for the feds to order you to buy health insurance?  If so, what else can the feds order you to buy?  Or do?  Where does that authority end?

All of which dovetails perfectly with the burgeoning Tea Party movement and represents issues that are likely to help Republicans set the narrative for the November campaigns.

Senate Republicans should act accordingly.

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