The "High Court" Argument

Trey Smith

What is surprising is the argument that seems to be the trump-card conversation-ender about the Supreme Court. Yes, even among those relatively few Democratic politicians and activists who are open to discussing the painful truths about the two party duopoly, the gut-wrenching discourse typically ends when nominees to the highest court are mentioned. The central assertion in Democrats’ Supreme Court Argument is that even if you admit all of Obama’s betrayals, even if you admit the danger of him inevitably facing no liberal opposition to further betrayals in his second term, and even if you admit that on some issues the political dynamics may create worse outcomes under a second Obama term than under a President Romney, nonetheless, the next president will likely get to appoint a few of the Supremes. This, suggests the argument’s proponents, means Obama is the only choice for president for anyone on the left.
~ from Romney or Obama and the Supreme Court: Does It Even Matter? by David Sirota ~

Yes, this represents the end-all be-all argument. It's the one I hear anytime I get into a discussion with hardcore Democrat. While some will admit that Obama is less than palatable, the Supreme Court question always serves as the clincher. Obama could be the worst Democratic Party president in history, but he still deserves our support because, well, do you want a Republican nominating the next candidate[s] to serve on the high court?

Sirota points out that this argument isn't all it's cracked up to be.

Here we see a hideous and revealing contradiction. We are at once expected to believe the Democratic Party is so committed to its alleged progressive jurisprudential agenda that its president will definitely nominate genuine progressives to the highest court (more on that in a second). And yet at the same time, we are also expected to believe that the Democratic Party is so clearly uncommitted to that same progressive agenda that its senators are all but guaranteed to let ultraconservatives ascend to the Supreme Court when a Republican president is elected.

If we look at George Bush's tenure, we find that the Democrats put up next to no fight when Dubya nominated arch conservatives! They had the numbers and thus the power to scuttle the nominations of John Roberts and Samuel Alito (Bush withdraw the latter on his own), but they refused to utilize it. So how committed are they to progressive values?

But there is another argument against this fallacy that Sirota did not mention. During his tenure, Obama generally has thumbed his nose at the US Constitution. He invaded Libya without the needed declaration of war and Congressional approval. He maintains a "kill list" that contradicts the underlying principles of the Bill of Rights. He has continued to defend the practice of warrantless wiretaps.

Do you really think he would nominate anyone who he thought would try to undermine these positions? A true progressive jurist most likely would side with the other justices who find this executive power grab to be unconstitutional. Two or more progressive jurists might tip the balance of power in the high court to oppose what Obama wants to do.

As I HOPE you can see, this argument has no legs to stand on. When it comes to nominations for the Supreme Court, we will get screwed regardless of which mainstream candidate wins.