Academic

Imagining Left/Progressive Judicial Appointments

By David S. Cohen

I recently read both Jeffrey Toobin’s “The Nine” and Jan Crawford Greenburg’s “Supreme Conflict.” Both cover the Supreme Court from the 1980s forward. Toobin’s focuses a bit more on the cases and the law; Greenburg a bit more on the nomination/appointment process. But, other than that, there aren’t many real differences between the two books other than writing style and some anecdotes.

The one thing that really stands out in both books is the all-out focus that the right has put on appointing true conservatives to the Supreme Court (and federal bench generally). Now, they haven’t been all too successful in that endeavor at times (Souter and Kennedy, for instance), but both books show how Republican Presidents have increasingly given the nomination process over to people within the administration who are focused almost exclusively on finding hard-core conservatives to place on the bench. After Bork, confirmability is a key concern as well, but foremost in the calculus is that the nominee is a true conservative.

What I walked away from the book thinking is how hard it is to imagine a Democratic President, any Democratic President, doing the same thing on the left. I just can’t see President Obama (or President Clinton, Edwards, or Kucinich, for that matter) giving the left-wing of the Democratic party virtually complete control over the selection process for Supreme Court (or lower federal court) appointments. Maybe I’m wrong, but it seems that, whereas the Republican Presidents have increasingly (but with some exceptions) opted to choose at the right end of the conservative spectrum, a Democratic President would try to cut from the middle or right end of the liberal spectrum, not the left end.

Why is that? Is it the influence of big money in mainstream politics? Possibly so. But is there more to it? Is it that positions on the left-end of the liberal spectrum are shared by fewer people than positions on the right-end of the conservative spectrum? I doubt that. Whatever it is, I just don’t see left judges appearing on the national scene in the near future the way that right judges are being nominated and confirmed now. Imagining for judges on the left the same effort made over the past decades for judges on the right seems impossible right now.

- David S. Cohen

Full post as published by Feminist Law Professors on August 04, 2008 (boomark / email).