Obama’s Supreme Court Nomination Challenge

Before the end of May, Obama wants to appoint a successor to liberal judge John P. Stevens.

The Supreme Court of the United States ruled on Tuesday (April 22, 2010): photos or videos of cruelty inflicted on animals cannot be forbidden, on the risk of violating the First Amendment to the Constitution which guarantees freedom of expression. This case illustrates the extent of the powers granted to the nine judges of the highest U.S. court, which may be of capital importance to American life (when for instance the Court recognized the right to abortion) or for the operation of institutions (when it is up to judges to decide the outcome of a disputed presidential election: George W. Bush finally triumphed over Al Gore by five votes against four).

This shows the importance of the choice that will make Barack Obama, in the coming weeks, replace the dean of the Supreme Court, Justice John Paul Stevens, 89, who announced on April 9 his intention to retire. Appointed in 1975 by Gerald Ford, he holds the record for longevity within the institution.

The president of the United States is responsible for appointing judges to the Supreme Court for life; they may serve until their last breath, resign, retire or be removed after an impeachment comparable to the one the head of state can be submitted to — something that has yet to occur. The presidential nomination is, however, followed by a Senate confirmation first before the Judicial Affairs committee and then in a plenary session.

It is recognized that a president chooses a candidate beholden to his political ideas, even if, in theory it is necessary for him to favor judges wishing to respect the law impartially. The Democrats tend to send progressives to the Supreme Court, while Republicans prefer logically to send conservatives. With every change of judge (averaging one every two years), the balance may shift more to the right or left, if one can indeed use left in the U.S context.

The balances can still fluctuate even after all judges are in place. A judge may be conservative in matters of ethics and liberal on other issues. A candidate may also be not what the president originally thought; John Stevens is an example. President Ford thought he had seen him as a moderate conservative, likely to be agreeable with an American society traumatized by the Watergate scandal which had discredited the Republican Party. The judge turned to be a rebellious progressive more often than not and regularly disagreed with the majority of the court — particularly when the court stated that George W. Bush won the presidential election of 2000.

Currently, the Supreme Court is under the thumb of conservatives. Besides the chief justice, John Roberts, appointed in 2005 by George W. Bush, four judges are, in fact, deemed conservatives (two were appointed by Ronald Reagan, two by the Bushes, father and son). Appointed by Bill Clinton, Ruth Bader Ginsburg and Stephen Breyer are progressive, like Sonia Sotomayor — Barack Obama made a sensation in 2009 by appointing a person of Hispanic origin, the first elected to the court.

By replacing John Stevens with a progressive magistrate, Obama does not fundamentally change the balance, despite the fact that some Republicans have already threatened to block the nomination process if he chooses a candidate too inadmissible to the right. The president began on Wednesday to consult with officials from both sides and will reach an appointment before the end of May, after a process that aspires to be smooth, thoughtful and civil.

One imagines Obama wants to promote a new personality symbolizing the American “diversity” but it is still speculation. The rumor has been passed around that he intends to appoint Hillary Clinton — brilliant lawyer in her early years — but at this stage at least, the White House says this is just a ploy started by Republicans.