Obama Threw Away The Supreme Court

Republicans are ecstatic that the far right will now interpret the Constitution for the rest of our lives. Democrats, not so much. And some of them are taking their anger out on Barrack Obama, who could have provided some balance. Of course, no one expected Donald Trump to be elected—not even Donald Trump, so Obama just thought he was politely handing the decision to Hillary Clinton, the expected winner in 2016.

The Daily Beast says Obama screwed up. Royally. Leading with the headline, “Will Obama Ever ’Fess Up to His Merrick Garland Mess?”

His failed appointment of Merrick Garland to the Supreme Court in 2016 lacked both imagination and hard-ball politics, leaving a legacy of “what ifs” that Obama, if he’s being honest, will confront.

“I think the Garland episode reflects so clearly the inability of Obama to translate his successful presidential campaigns into governing, and the limits of his philosophy of restraint. A liberal lion like FDR might have pursued appointment to the bench by executive order,” says Alexander Heffner, host of The Open Mind on PBS.

He makes the case that if Obama had chosen runner-up Jane Kelly, the grassroots activism that propelled Obama into the White House would have kicked into high gear with supporters camped out in Judiciary Chairman Chuck Grassley’s front yard demanding he give her a hearing.

Kelly, an Iowa native like Grassley, a former public defender and the embodiment of a public servant, had been unanimously approved by the GOP-led Senate for the federal bench in 2013. Just north of 50, she was considerably younger than the 63-year-old Garland. Progressive groups begged Obama to appoint Kelly, whose story touched hearts, but Obama listened to Republican Orrin Hatch instead, who counseled a centrist choice could get seated by the Senate his party controlled and still does.

“Who listens to Orrin Hatch?” a liberal activist exclaims, still angry at Obama for “taking the path of least resistance. He didn’t want to make waves.” Hatch had given his blessing to President Clinton naming Ruth Bader Ginsburg, and Obama thought history could repeat itself. “He was fooled by Orrin Hatch, who then turned around and betrayed him,” this activist says. “He made a terrible mistake, the biggest mistake of his presidency.”

In fact, some liberals are calling the nomination a “five alarm fire.”

Donald Trump’s latest supreme court pick is a “five-alarm fire” for democracy, a leading liberal activist said on Monday, as civil rights groups promised multimillion-dollar ad buys, a day of action and intense campaigning in an effort to stop the nomination. . .

Throughout his campaign and presidency, Trump has promised to appoint supreme court justices who will “automatically” overturn Roe v Wade, the 1973 court decision which legalized abortion. . .

Nearly half of the 50 states have already severely restricted abortion, with women forced to travel inconvenient distances to clinics. Should abortion rights be further curtailed, the activists said, systems to keep abortion accessible even in areas where it might no longer be legal would need to be substantially strengthened.

Although most liberals are somewhere between morose and suicidal regarding the Supreme Court, USA Today says they may see a “silver lining.”

Judge Kavanaugh’s precommitments will not affect every coming case: about half of the court’s decisions are unanimous. Nor will his every vote be known in advance: some issues are neither liberal nor conservative. But on the major fights with identifiable left-right valence, fights desperately important to millions of people — the newest justice will be reliably farther to the right.

That shift may finally force progressives to confront the outsized role of the Supreme Court — and, more important, to act on that realization.

For decades, conservatives have been more motivated to political action by the composition of the courts than their liberal counterparts have been. By many accounts, Justice Kennedy had become the most important person in the country. Justice Scalia’s death meant end-of-days political combat, and profound compromise of political principle, to keep it that way.

The point is that the dire situation of a far-right court for decades to come may force liberals to do the hard work of fighting in low-level campaigns, which Republicans have dominated for years.

The Supreme Court issues 60-70 decisions per year, often telling government what it may do, but not what it must do. A few decisions take some progressive action off of the table. But on many issues in many places, the Court sets broad parameters and legislators and executives fill in the blank.

Beyond that, Fox notes that there is a “narrow path” to blocking Kavanaugh’s nomination.

First, Democratic leaders must convince all of the 10 Democratic senators up for re-election in November in states that Donald Trump carried in the 2016 presidential election to oppose his Supreme Court nominee, even at the risk of alienating their constituents.

Of these 10 Democratic senators, the most likely to vote to confirm Kavanaugh are Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia. All voted in favor of President Trump’s nomination of Neil Gorsuch to the Supreme Court last year.

In addition to pressuring every single Democratic senator to oppose Kavanaugh, Democratic leaders must launch a vicious assault to get Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska to oppose Kavanaugh.

In what could be dubbed Project Fear, Democrats who want Collins and Murkowski to join them in opposing Kavanaugh’s confirmation will claim the judge will vote to overturn Roe v. Wade – the 1973 decision that legalized abortion nationwide – and will say that Kavanaugh will end ObamaCare.

Both Senators Collins and Murkowski have stated they would have trouble voting for a nominee who has indicated the intention to overturn Roe v. Wade. They also joined Sen. John McCain, R- Ariz., in derailing the GOP’s effort to replace ObamaCare in 2017. . .

But I don’t believe there is a realistic chance – absent the revelation of a personal scandal or an unlikely verbal mistake by Kavanaugh.

All of this is about battling over control of the partisanship in the Supreme Court. But isn’t that what we want to minimize? Shouldn’t a court be neutral? Shouldn’t justice be “blind”?

We addressed this issue in our own pages, when it looked like Obama would put a liberal on the court. We were against it.

I would like to take a step out of our normal role of repeating what is being said elsewhere. I would like to recommend a partial solution to our problem.

As quoted above, Alan Simpson says it’s not the senate judiciary committee’s job to pick a Supreme Court nominee. But my question is, why not?

The Constitution says that the President will name Supreme Court Justices “with the advice and consent” of the Senate. Why don’t we just expand the meaning of “advice”?

Imagine if the Senate Judiciary Committee drew up a list of recommended Supreme Court nominees. Both sides would have veto power, so only true centrists would be recommended to the President. Acting on that “advice,” the President would make his (or her) nomination from that list.

That would not totally preclude creative minds. Over the years, Republicans have nominated moderate to liberal justices, and Democrats have nominated moderate to conservative justices. I believe a system like this would help to reduce our divisions.

And therefore, I would like to suggest that the Republicans are right—in this case. The Judiciary Committee should consider Merrick Garland—along with a list of their own. Then, they should recommend names of judges both sides can agree on.