Federal Courts and Nominations

Potential High Court Nominee Thomas Would Fit Obama Narrative


To understand why 9th U.S. Circuit Court of Appeals Judge Sidney Thomas is a finalist for elevation to the U.S. Supreme Court, look at Jackson v. Rent-a-Center West.

The case was argued before the Supreme Court last week, but Thomas wrote the majority opinion (pdf) when it was before the 9th Circuit. Antonio Jackson, an African-American employee, claimed he was denied promotions because of his race. His company mandated arbitration, a device progressives say is unfairly stacked against the little guy.

Thomas granted Jackson access to the courts to decide if the company’s arbitration agreement could be voided. Such an outcome fits snugly into a populist narrative the Obama administration has been building against the Roberts Court. In 2005, then-Senator Obama voted against John Roberts because, he said, he too often sided with “the strong in opposition to the weak.” The first bill Obama signed as president, named after plaintiff Lilly Ledbetter, made it easier to file equal-pay lawsuits.

And in January, Obama slammed the Court’s Citizens United decision in his State of the Union address.

“The Jackson case is a good illustration of how the law can unfairly disadvantage hard-working Americans,” said Douglas Kendall, president of the Constitutional Accountability Center. “Judge Thomas’ opinion illustrates well what I think President Obama means when he says a judge should understand the effect of decisions on the lives of ordinary Americans.”

Thomas is one of four reportedly on Obama’s short list, along with Solicitor General Elena Kagan and fellow appellate judges Merrick Garland and Diane Wood. With fresh Supreme Court rulings coming soon inJackson — and in former Enron chief executive Jeff Skilling’s criminal case — the optics for televised confirmation hearings play well for Thomas.

Beyond that, political observers view Thomas as having the same progressive credentials as Wood, but without the paper trail on abortion. His Montana upbringing and bearded visage would also appeal to independent voters Obama is trying hard to keep in his column, and may not roil the Tea Party crowd quite as much as Wood.

However, gender diversity is also very important to Obama, who has told people he would like to be the first president to name three women to the Supreme Court, according to Newsweek.

Like Wood, Thomas is credited as having built strong working relationships with his Republican-appointed colleagues on the bench. The Clinton appointee has for many years been the 9th Circuit’s en banc coordinator, sort of an in-house parliamentarian. He settles questions over filing deadlines, and the timeliness of en banc calls.

It’s a sensitive job, said Chief Judge Alex Kozinski, with potentially serious impact on the life of a case. Thomas must weigh in roughly 10 to 15 times a month, Kozinski said.

“I’ve never known one of his rulings to be challenged,” Kozinski said. “I think it’s a tribute to his evenhandedness that he’s been on the job for many years, and nobody wants a different en banc coordinator.”

Kozinski, who was a Justice Anthony Kennedy clerk, says Thomas would likely be aware of his “rookie” status in the beginning and take care not to be presumptuous in pressing his case with the other judges. But over the course of the first year, he thinks Thomas’s work ethic and advocacy would go over well with the high court’s swing voter.

“I think they would develop a fine, close working relationship,” he said.

Read the original article here.

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