Another One Bites the Dust

Trey Smith

When people hear I have no intentions whatsoever in voting for Barack Obama this November, they try all sorts of arguments to get me to change my mind. When these attempts prove futile, they reach into their back pocket for the one rationale that sways a good many people: US Supreme Court nominations. "Look," they say, "you may not like Obama, but do you want Mitt Romney to be picking the next nominees for the court?"

On its surface, it SOUNDS like a good argument. The general thinking goes that Democratic presidents tend to nominate liberals and Republican presidents tend to nominate conservatives. While I agree that this is the general tendency, it doesn't always work that way. Republican President Dwight Eisenhower chose the Republican Earl Warren to be Chief Justice and the Warren Court turned out to be one of the most liberal in history!

As Glenn Greenwald points out, Barack Obama's record in this regard is only 50/50. Sonia Sotomayor generally sides with the liberal justices on the court, but the same cannot be said for Elena Kagan.

There have, however, been several cases in which Kagan has joined with the Court’s Scalia/Thomas/Alito/Roberts bloc in important areas, including her support for the narrowing of Miranda rights (the stalwart protection of which has long been a crown jewel of liberal jurisprudence) as well as her denial of review of disturbing death penalty sentences and an oppressive free speech ruling. In each of those cases, President Obama’s other Court appointee, Sonia Sotomayor (whose nomination I enthusiastically defended), as well as Ruth Bader Ginsburg, were on the opposite side from Kagan.

The Supreme Court’s health care ruling two weeks ago provides perhaps the most potent example yet justifying these concerns about Kagan. Although it was John Roberts’ ideological apostasy that has received the most attention, Kagan joined with the Court’s five right-wing Justices (as well as Stephen Breyer) to strike down one of the most important provisions of the bill — its Medicaid expansion program — on the ground that it was unconstitutionally coercive of the states (by threatening states with a loss of benefits for non-participation); on that issue, it was Sotomayor and Ginsburg in dissent.

Since the Roberts Court already leans to the right and Obama has not done much to shift the tilt, the last best argument for his reelection flies out the window. Since Obama has not proven to be a fighter -- he constantly makes concessions to the craziest conservatives -- there is little reason to believe that he would nominate an ardent liberal in the future. At best, we could hope for another Sotomayor, while keeping our fingers crossed that he didn't deliver to us another Kagan!