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Supreme Court Nomination April 19, 2010

Posted by Dwight Furrow in Dwight Furrow's Posts, politics.
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Much of what one reads in the press about Obama’s decision about a Supreme Court nominee will be irrelevant. As Tom Goldstein notes:

With relatively little to talk about until the nomination is announced, most coverage is just un-informed speculation about posturing by competing ideologues.

That does not mean that the public should just go about its business and ignore the nomination until the President makes his choice.  There is valuable substantive analysis to be done.  But it has to do with the Court’s jurisprudence.

Thankfully Goldstein is prepared to talk about the real issues:

The single largest body of cases in which Justice Stevens’ retirement could hypothetically shift the balance on the Supreme Court involves ideological issues on which the four most liberal Justices (Stevens, plus Souter, Ginsburg, and Breyer) joined with Justice Kennedy to create a majority.  But although these cases involve very important issues, most of them are not very relevant to an examination of how the Court might shift because for that to occur Justice Stevens’ successor would have to be more conservative than not just him but also each of the other four members of the majority:  Souter, Ginsburg, and Breyer, but also (the reasonably conservative) Kennedy.  That is very unlikely. […]

As a consequence, the appointment of Stevens’ successor by a Democratic President with a Democratic Senate is unlikely to shift the Court’s rulings on most important social issues, such as abortion, affirmative action, religion, and gay rights.  On those questions, either the Court already is controlled by a conservative majority, or Stevens’ successor is unlikely to move the Court further to the right.

What issues will likely be affected by a new member on the court?

Thus, the Court has been narrowly divided, with the left prevailing, in cases relating to the rights of military detainees to have access to the federal courts, including particularly on federal habeas corpus.  A nominee who had a substantially more robust view of presidential powers, or even greater confidence in this Administration’s approach to detainee questions, could shift the course of those rulings.  In addition, other important presidential-power questions are headed towards the Supreme Court, including with respect to the NSA wiretapping program.

And there is much more. This is a very informative article. Read the whole post at the SCOTUS blog.

book-section-book-cover2 Dwight Furrow is author of

Reviving the Left: The Need to Restore Liberal Values in America

For political commentary by Dwight Furrow visit: www.revivingliberalism.com