2009 seems to be the year that the American electorate is turning left of center. Evidence of this include the election of President Obama, the election of a Democratic controlled Congress, the Supreme Court of Iowa sanctioned same sex marriage, Vermont allows same sex marriage and several other states are soon to follow. Is this left-of-center shift better for the country than the right-of-center shift? To be sure, the shift is attributed to the disappearance of the liberal wing of the Republican Party and the disappearance of the conservative wing of the Democratic Party. Is there a need to balance this shift? Noticeably absent from the left of center direction is the Supreme Court of the United States. On the issue of race, Chief Justice John Roberts’ court seems poised to adopt the legal and amorphous fiction of a “color-blind” America. For example, on school desegregation the court limited the ability of school boards to implement voluntary school desegregation plans and raised significant legal and procedural hurdles for plaintiffs bringing discrimination law suits. On the court’s docket are three cases with racial implications Ricci (affirmative action), Northwest Austin Municipal Utility District Number One v. Mukasey (Voting Rights), and Padilla v. Kentucky (Immigration and the right to counsel).
Addressing the right-of-center approach to jurisprudence, the first bill signed by President Obama was the Lily Ledbetter Act, which sought to correct the doctrinal and ideological shift of the Roberts court on pay discrimination in particular. The new law amends Title VII, by providing, “unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” The Ledbetter Act is a clear rebuke of the right-leaning ideological shift of the court. Of course, a president cannot govern by gaining the political muscle to overturn decisions of the U.S. Supreme Court. Thus, he uses his appointments to the ostensibly independent judiciary to further his political agenda. Obama will not be the first president to do so. In fact, the right-of-center ideological shift is due to both President Bushes.
Despite the claim that presidents appoint Supreme Court justices based on qualifications and not on ideology, the ideological and political tilt of the Roberts court and courts before it reflects the ideology of the appointing president (with the exception of Justice Souter). So fittingly, with Justice Souter resigning and President Obama set to name his replacement, what factors will the president consider? As a candidate for president, Obama said, “I will seek somebody with a sharp and independent mind, and a record of excellence and integrity.” Last week he said, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.” Thus, by his own admission the president seems poised to select someone who is left of center and thus solidify the ideological left-of-center and right-of-center divide that infects the judiciary.
To be sure, his appointment will not change the constitution of the court since Souter is left of center. This however, is not the question. The question is where a president promises “change that we can believe in,” does that change include not changing the ideological shift of the Supreme Court of the United States? If it does, were Americans voting for change in the politics of ideology or were Americans voting for change in party? If Americans were voting for a change in party and not ideology, then the president would have a difficult time appointing a White man or one who many in the left-of-center bloc would argue “thinks like a White man” to the Supreme Court of the United States. Just like race was a factor in the Bush 41 decision to appoint Justice Clarence Thomas to the court, so too will race, gender, and age be a factor in Obama’s decision. A major consideration for the president is going to be appointing a young judge who can shape the ideological intestines of the court interminably.
The president has said he will select someone who understands the reality of everyday Americans. This unshrouds the president’s view of altering the landscape of the court by appointing justices now and in the course of his presidency who are unlike the current Supreme Court where all of the justices have come from the federal appellate courts. The model of course will not be aboriginal. The court that decided Brown v. Board (the decision declaring separate is unequal), Gideon v. Wainwright (the sixth amendment to the United States Constitution required that indigent non- capital criminal defendants be provided with counsel), Miranda v. Arizona (Miranda rights), and Loving v. Virginia (which allowed inter-racial marriage) was comprised of those who “combined empathy and understanding” in its judicial decisions. Of course, it is not the kind of “empathy and understanding” that the Roberts court has shown on the issue of race. It has chosen instead to employ the juridical framework of formal equality and the aspirational, controversial rhetorical of a “color-blind America.” Let’s be clear. The nomination of a Supreme Court justice is among the single most political decision that a president will make. Thus, advocacy groups on all sides of the issue will pressure the president to alter the judicial landscape in their favor.
Responding to the vitriolic attack on Sen. Leahy by advocacy groups who supported current Chief Justice Roberts’ confirmation, then- Sen. Obama said, “These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process in the past and constrained each and every senator in this chamber from making sure that they are voting on the basis of their conscience.” But, elections matter and the question is how will the president’s conscience blend with the politics of race, age and gender as well as ideology?
Dr. Christopher J. Metzler is associate dean at Georgetown University’s School of Continuing Studies and author of The Construction and Rearticulation of Race in a “post-racial America.”