The Right Fight for Progressives Over the Souter Vacancy

Washington Post columnist E.J. Dionne Jr., in a truly must read op-ed published Monday, calls for an “honest brawl” between Republicans and Democrats over the type of judge who should replace Justice David Souter on the Supreme Court. Dionne points to upcoming Supreme Court decisions as the backdrop for contrasting the judicial philosophies of conservatives and progressives:

The Voting Rights Act case now before the Supreme Court is instructive. Section 5 of the law requires eight states (six of them Southern) as well as most of Virginia and dozens of jurisdictions elsewhere to obtain Justice Department approval (“preclearance”) before making changes to their voting laws. The idea was to prevent covert moves to disenfranchise minority voters in areas where their rights had once been in jeopardy.

Opponents of the provision say that while it may have been necessary when the Voting Rights Act was first passed in 1965, a time when many Southern states openly discriminated against African Americans, it is no longer needed.

But would it not be a form of judicial activism for the court to strike down an act of Congress that is 44 years old? Is it not a form of legislating from the bench for the court and not Congress to decide whether a law is outdated?

Here Dionne’s piece, along with Adam Cohen’s excellent op-ed in today’s NY Times discussing how conservatives seem to be ignoring the Constitution’s text and history in their attacks on the Voting Rights Act, really hits the nail on the head. The Voting Rights Act case will likely be decided the last week in June, right in the midst of the Senate’s consideration of Obama’s nominee to succeed Justice Souter. Dionne’s questions should be among the very first questions put to the soon-to-be-named Supreme Court nominee by the Senate Judiciary Committee this summer. If conservatives insist on shaping this discussion with slogans like “judicial activism” and “legislating from the bench,” then at the very least, such terms should be applied to liberal and conservative nominees consistently. In Dionne’s words:

Today, judicial activism is far more the habit of conservative justices than liberals. The real danger of a conservative Supreme Court is that it will rob Congress and the states of the right to legislate on civil rights, worker rights, the environment and social welfare, just as conservative courts did from the turn of the last century until the late 1930s.

The voting rights case is just one of several cases still to be decided during the 2008-2009 Supreme Court term that should form an important backdrop to the hearings over Justice Souter’s successor.

During the March oral argument in Caperton v. Massey Coal, conservatives on the Court were deeply skeptical of whether an elected West Virginia state supreme court justice had an obligation, under the Fourteenth Amendment’s Due Process Clause, to recuse himself from hearing a case in which the CEO of one of the lead litigants had spent nearly $3 million (60% of total campaign expenditures) in support of his election. The widespread public outrage about the corrupting influence of campaign contributions in state judicial elections, coupled with the evidence that such corruption strikes at what the framers of the Due Process Clause were trying to prevent, make Caperton another terrific vehicle for illustrating how the Constitution itself points in a progressive direction.

Finally, given the inevitability of debates over the need for empathy and diversity on the bench, there is no better case for progressives to focus on than Safford Unified School District v. Redding. In Redding, a public school conducted a strip search of a 13-year-old girl based entirely on an unsubstantiated (and in this case erroneous) tip from another student that the girl was hiding ibuprofen (the generic name for the headache remedy Nuprin and Advil). Redding required application of one of the Constitution’s “majestic generalities” (a phrase coined by Justice Robert Jackson): the ban against “unreasonable searches and seizures.” Judging unreasonableness in this context requires an understanding of the perspective of the school administrators and the child who was searched, and as journalist Dahlia Lithwick captured perfectly, the men on the Supreme Court seemed to have a really hard time seeing the dignitary harms a 13-year old girl suffers when forced to strip in front of school officials. Conservatives may be uncomfortable with judges balancing liberty interests of a child with the law enforcement needs of school administrators, but that is what the Constitution requires.

As we’ve stated in the past, President Obama, and progressives in general, must reclaim the constitutional high-ground when it comes to talking about the Supreme Court. Dionne’s piece illustrates that progressives can and should turn this Supreme Court vacancy not just into a discussion about who should replace Justice Souter, but also into a discussion about what is the correct role of judges, what judicial philosophy should prevail on our Supreme Court, and what constitutes a faithful reading of the text, history, and principles of the Constitution. If progressives succeed in doing this, we will do more than win confirmation of Obama nominees; we will win the fight over the future of the Constitution and the Supreme Court.

Cross-posted at the Huffington Post.

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