FIRST ONE @ ONE FIRST

The W.A.S.P. Seat

Posted in Clairvoyance by Mike Sacks on December 30, 2009

In my post below, I warn that not every name I bandied about in my quoted column should have been taken seriously.  One name that must be taken seriously, however, is Diane Wood.  For President Obama, Wood is the perfect successor to Justice John Paul Stevens, should his lagging clerk-hiring be an accurate predictor of his imminent retirement.

First, the basic qualifications: Wood is a well-known liberal judge on the Court of Appeals for the Seventh Circuit.  She was the first person President Obama interviewed for what is now Justice Sonia Sotomayor’s seat on the Supreme Court.  President Clinton nominated her to the Seventh Circuit in 1995 and she took her seat with the Senate’s unanimous confirmation.  She has since emerged as the Circuit’s most identifiable liberal voice amid her famously conservative colleagues, Judges Richard Posner and Frank Easterbrook.  That much had already been widely reported in the weeks following Justice Souter’s announcement of his retirement.

Now, what makes Wood the perfect fit for Stevens’s seat?

  • THE BEST WOMAN: President Obama will nominate a woman.  Period.  But Obama will not want to nominate just any political or legal star.  Unbound by any other identity concerns from his own political coalition, Obama will nominate the very best woman for the job: the woman that no man–or woman, for that matter–can plausibly contend is his inferior.
  • The W.A.S.P. Seat: Justice Stevens is the lone Protestant on a Court staffed by six Catholics and two Jews.  As critical mass has made “the Catholic seat” and “the Jewish seat” irrelevant, President Obama will find encouragement in the irony that by nominating Judge Wood, he is preserving a link to the Court’s–and the country’s–past.  In this sense, she’s a two-fer: the left’s traditional identity politickers can be satisfied with another step towards the Bench’s gender balance while the right’s neo-identity politickers–notably, the Senate Judiciary Committee’s W.A.S.P.s so perturbed by Sotomayor’s “wise Latina” remarks–can take a break from lamenting where their country has gone.
  • PRO-CHOICE: Judge Wood is unabashedly pro-choice.  In Planned Parenthood v. Casey, in which Justices O’Connor, Souter, and Kennedy affirmed a woman’s right to choose an abortion while narrowing Roe v. Wade‘s original protections, Justice Stevens argued that Roe needed no modification.  Judge Wood’s abortion jurisprudence has proven broader than Casey permits: when she creatively sidestepped the Court’s undue burden standard to find that an anti-abortion organization violated the Racketeer Influenced and Corrupt Organizations (RICO) Act through their protest activities, the Supreme Court reversed her, with only Justice Stevens dissenting.
  • A STRONG VOICE: The Court’s liberal bloc will lose its leader upon Justice Stevens’s retirement.  He has long served as a powerful counterweight to the Court’s conservative heavy-hitters.  Judge Wood will bring with her a decade and a half of sparring experience with Judges Posner and Easterbrook, whose intellectual reputations not only stand as tall as those of any of the Supreme Court’s conservative bloc, but also their forceful personalities rival even Justice Scalia’s.  Further, after nominating the prosaic Sotomayor, President Obama will want to put forward a “rock star of the written word,” who, as a Mother Jones reporter described, “Federalist Society members viewed—off the record, of course—as the left’s answer to John Roberts.”
  • NON-IVY LEAGUE: Judge Wood earned her undergraduate and law degrees from the University of Texas.  Currently, Justice Stevens, a Northwestern Law graduate, is the only member of the Court not to hold an Ivy League law degree.
  • UNIVERSITY OF CHICAGO LAW PROFESSOR: Judge Wood taught alongside President Obama on the faculty of the University of Chicago Law School.
  • SEVENTH CIRCUIT: Judge Wood sits on the Seventh Circuit, where then-Judge Stevens served prior to his confirmation to the Supreme Court.
  • AGE: As Joan Biskupic of USA Today noted on her blog today, Judge Wood’s age–she will be 60 this summer–may not be problematic, given that “President Obama has not been seeking younger candidates for the federal bench as GOP predecessors Ronald Reagan and George W. Bush did.”

Of course, these factors only speak to why Obama will nominate her, not to why the Republicans will support her.  They won’t.  Not even if she preserves the W.A.S.P. seat and would, however unlikely, vote less liberally than Stevens.  The Republican Party in the summer of 2010 will see Wood’s nomination as an opportunity to feed raw meat to their pro-life base in anticipation of the mid-term elections.

However, if Sotomayor was Obama’s pick for expanding the Court’s diversity, Wood will be Obama’s pick for bolstering the Court’s progressivism.  After the Republicans put up a near-united front for Sotomayor and Health Care, Obama surely recognizes that the days of gaining a broad consensus vote will not be returning anytime soon.  No matter who he nominates next, the vote will be nearly party line.  And with the specter of losing a sliver of his Senate majority next November, this summer may be Obama’s only opportunity to nominate the perfect successor to Justice Stevens.  Judge Wood’s time has come.

Fun with the Future

Posted in Clairvoyance by Mike Sacks on December 30, 2009

A few months back, Washington Post ran a contest called, “America’s Next Great Pundit.”  I entered.  But rather than do as prompted and write about the issues currently before us, I decided to have fun with the future.  I got rejected.

Take some of the cast of characters with a grain of salt.  But as to the other characters, turn over your hourglass and pay heed to how the grain of salt turns into a sturdy pile of sand.

July 2021

Justice Antonin Scalia, the 85-year-old senior member of the Supreme Court, held a press conference yesterday to announce his retirement.  Stooped over and weakened by three heart-attacks, he symbolized the conservative Court’s decline.

The iconic jurist had hoped to retire upon the election of Senator Eric Cantor (R-Va) to the Presidency.  The votes, however, weren’t there.

“Now I know how [former Justice] Bill Brennan felt,” the Justice chuckled, alluding to the liberal lion Scalia often battled during his early years on the Court.  Thirty years ago, the elderly Brennan suffered a stroke and promptly sent his letter of resignation to a President on the opposite end of the political spectrum.

Sources close to President Cory Booker report that he will make good on the campaign promise to nominate Barack Obama to the first vacancy on the Supreme Court.  Booker’s declaration relegated his Democratic Primary competitors to meek “me too’s” and helped catapult the former New Jersey Governor over incumbent President Biden at the polls.

At a dinner in Tehran with former Iranian President Mousavi commemorating the tenth anniversary of the fall of Ayatollah Khamenei, Obama told reporters that after five years of democracy promotion abroad, he’s ready to return to Washington for a new challenge should Booker nominate him.

“Iran is our ally and has helped make Iraq and Afghanistan the stable states they are today. Global nukes are approaching zero.  Israel and Palestine are partners in peace. We’ve gotten a lot done.  But look, the law is my first love.  And I’ve got a legacy to protect back home.”

But those hoping Obama will unite with Justice Diane Wood, his second Court appointment, to reconstitute the long-lost, full-throated liberal wing of the court will be disappointed.

“My health care legislation has been turned into a money pit.  My Wall Street regulations have turned into financial straitjackets.  After Justice Kennedy retired, my economic-based affirmative action reforms and abortion-control legislation have been in danger.”

Cantor’s quixotic campaign and its landslide defeat finally nailed the coffin on Scalia’s brand of conservatism, but the contested Democratic nomination points to Booker and Obama as the new vanguard of restraint against the Biden administration’s excesses.

If Obama can get his Tehran comments past the progressive members of the Senate Judiciary Committee, Scalia can satisfy himself with the irony that the liberal messiah of 2008 will be resurrected as the figurehead of new conservatism.

First Post @ First One @ One First

Posted in Introduction by Mike Sacks on December 30, 2009

My name is Mike Sacks.  I am a third-year law student at Georgetown interested in legal journalism and the intersection of law and politics.  This semester, I have no morning classes.  As such, I will be taking advantage of living only minutes from the Supreme Court to pursue a rather unorthodox extracurricular activity: reporting from the Court as the first one in line at One First Street.

For every politically salient case from January through April, I will attempt to be at the head of the general admission line.  This is no mean feat: for the September rehearing of Citizens United v. FEC–also Justice Sotomayor’s first appearance on the Bench–much of the line started forming around 4am.  How do I know this?  Because I claimed my first ever “First One @ One First” ticket by spreading my blanket on the sidewalk at 11pm the previous night.

As a Duke University graduate, I should have ample camping-out experience.  But in my four years as an undergraduate, I actively sought to–and succeeded in–securing my admission into the Duke-UNC games without once suffering through wintry nights in a flimsy tent perched on the soggy soil of Krzyzewskiville.  Indeed, as a former “Nina Totintern,” I once enjoyed a similar evasion of the elements at the Supreme Court.  But those halcyon days of press-passed entrances are over.  Now I must rough it.

Camping out at the Court in winter’s nadir will not be easy.  Tents are forbidden.  The concrete sidewalk makes for an unforgiving bed.  Sprinklers spring up in the still of the night.  Challenging climate be damned, however; when the next person arrives, excited to be first, he or she will find me, with my cracked lips and frozen fingers, sardonically asking how it feels to be second and seriously inquiring why he or she is crazy enough to get in line so early.

And that question–”why are you here?”–is what I set out to explore.  Every Supreme Court reporter tells us what goes on inside the Court at argument and in its opinions.  Every Supreme Court reporter gets insight and analysis from expert academics and practitioners.  Sometimes Supreme Court reporters even interview a party in the case to expose the human element often lost in the rarefied air of high court’s legal abstraction.  But no Supreme Court reporters ever ask the Courtroom’s spectators why they have congregated inside the Temple of our Civil Religion.

Our citizenry who have come to witness the Court first-hand surely have something to say, whether when waiting in line before the Court opens or spilling out onto the steps after the Chief Justice’s gavel bangs closed the day’s session.  Perhaps no one ever asks them because our judiciary is supposed to function independent of public passions.  But only the most dogmatic adherents to the mythology of an insulated Court will maintain that our Third Branch is apolitical.  Look to the anti-abortion protesters who spend every day standing silent in front of the Court or the grandstanding Senators asking stonewalling judicial nominees for their views on the day’s hot-button political issues.  Look at the Court’s history in matters of racesexPresidential power,economic policylaw enforcementsexual orientation, to name only a handful, to find the Court inexorably intertwined with the era’s political climate.  Look even at the Court itself: justices are labeled for their fidelity to liberalism or conservatismhowever epochally defined.

The Court is responsive to politics.  Consequentially, the vox populi should matter for those interested in the Court.  What does the person in line at 5am hope to see in this case?  Why is the family that shows up at 9am hoping to get in?  How many of those waiting for the doors to open are lawyers invested in the litigation or legal issues at play or professionals or citizens who will be impacted by how the Court may rule?  How many people exiting the Court even understood what they just saw and heard?  Do they care or were they just there to be there?  All of these people represent the American public.  How they vote is impacted by how they perceive our country’s system of governance.  Their experience with the Court–whether from the position of knowledge or ignorance, veneration or cynicism, all of the above, or somewhere in between–helps shape our political dialogue that informs who we elect to represent us in the Executive and Legislative Branches.  These branches, in turn, shape the judiciary through nominations and confirmations; and the judiciary, thus shaped, passes judgment on the political choices made by earlier–and sometimes contemporary–Presidents and Congresses.

Accordingly, my other aim for this project is to test my hypothesis that the Roberts Court has been quite responsive to its surrounding, and shifting, political climate.  I have a forthcoming piece detailing my thoughts, but I will preview my evidence:

  • During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress.  Meanwhile, the Roberts Court aggressively pushed rightward on abortionstudent speechschool desegregation, gender discrimination, and campaign finance.
  • The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate.  The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene.
  • Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision.
  • This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans.  The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.  In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.  And not only is that case officially part of last term, but also the fact that no opinion has come down yet has led some to speculate that it may not be the cut-and-dry 5-4 conservative opinion most expect.  But more on that case, and how it fits into my hypothesis, when the decision actually comes down.

Finally, I will use this site to post other thoughts on the Court that I haven’t yet read anywhere else.  Given that the legal and political blogs tend to express every possible sentiment existing in this world and parallel universes, these entries will likely be rare and in the shape of wild conjecture.  When another site says something I’m thinking, almost always much better than I can express it myself, I will post it here.  Further, when another site says something exceedingly compelling that I have not yet thought or I could have never come up with by myself, I will post it here.  And if another site says something exceedingly objectionable and I have something to contribute to it, I will post it here.

Thank you for reading.  If this introduction has gained your interest–and if you’re this far, I hope it has–please subscribe and share!

Rock.

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