Obama’s last chance to prove himself a liberal

To foreign eyes, the political battles - the thunder and lightening - that accompany nominations to the US Supreme Court are baffling. Why all the fuss? The answer is simple. Upon the tilt of America's highest court hang issues of life and death – starting with the death penalty itself.

Is the President legally entitled to kidnap foreign nationals or even US citizens, hold them without charge and torture them? Does the Second Amendment to the constitution allow Americans to have guns – 250 million of them at the last estimate? Was the election of George W Bush in 2000 valid? Are homosexual acts legal? These are all questions ultimately settled by the Supreme Court.

Nominations to the court are among the most important tasks any president can undertake. George Bush Sr successfully nominated Clarence Thomas Jr., the Court's only black judge. Though Bush was a one-term president, Thomas  - a truly awful justice – has already sat on the court for 20 years and looks good for at least another decade.

The high water mark of the Supreme Court as a progressive institution was under Justice Earl Warren half a century ago. Since then it has tilted farther and farther to the right. A bold choice – highly unlikely - by President Barack Obama could reverse the trend.
 
With the impending departure from the Supreme Court of Justice John Paul Stevens at the age of 89, we lose one of the nation's last substantive ties to the Great Depression and to the effect of that disaster on the political outlook of a couple of generations.

Stevens’s father, Ernest, owned a famous hotel in Chicago – the Stevens, with 3,000 rooms, now the Hilton. It was built in 1927, and there young John Paul met Amelia Earhart, Charles Lindbergh and Babe Ruth.
 
But by 1934 hard times had taken their toll. The hotel went bankrupt. John Paul's father, grandfather and uncle were all indicted on charges that they'd diverted money from the Illinois Life Insurance Co (founded by the grandfather) to try and bail out the hotel. The uncle committed suicide, and Stevens's father was convicted. The Illinois Supreme Court exonerated him two years later, stating: "There's not a scintilla of evidence of any concealment or fraud".

Thus did John Paul, still in his teens, acquire his life-long scepticism of police and prosecutors. Between the year he joined the Supreme Court (put up by Gerald Ford in 1974 on the recommendation of Ford’s attorney general, Chicagoan Edward Levi), and 2010, John Paul Stevens voted against the government in criminal justice and death penalty cases 70 per cent of the time. Only one justice – William O. Douglas, whose seat Stevens took over – served longer on the court.

When Justice Harry Blackmun retired in 1994, Stevens became the senior associate justice and, thus, able to assign opinions to the justice of his choice. Stevens played his field expertly, time and again manoeuvering the swing vote – Anthony Kennedy – onto his side by assigning him the task of writing the opinion.
 
The most famous case of this sort was the 2003 decision on Lawrence v Texas, which became the equivalent for gay rights of Brown v Board of Education for racial discrimination. Among other Stevens-written or Stevens-influenced landmark opinions was Atkins v Virginia, where Stevens successfully won the necessary majority for the view that executing the mentally retarded constituted cruel and unusual punishment.  

Stevens was also the Court’s most powerful opponent of the so-called doctrine of unitary executive power, which takes the view that the US president and his executive wield constitutionally unchallengeable power. Stevens opposed all such assertions and extensions of dominance by the executive. The relevant case was Hamdan v Rumsfeld. Stevens wrote the majority opinion that Bush J could not unilaterally set up military commissions to try detainees in Guantanamo.

Stevens described himself as a conservative, and in one sense he was, because he tried to preserve the spirit of the progressive Warren court through the decades-long swing of the court toward the right, both among the Republican nominees and the ones put up by Clinton (Breyer and Ginsburg) and by Obama (Sotomayor). As Stevens himself has said to law professor Jeffrey Rosen, "Including myself, every judge who has been appointed to the court since Lewis Powell [1971] has been more conservative than his or her predecessor."

As Obama and his advisers ponder potential nominees, the air is filled with counsel that Obama should avoid a protracted fight and should pick "a moderate" – ie, pro-business, pro-government – nominee, like Elena Kagan, 49, the solicitor general.

As Clinton's deputy domestic policy advisor, Kagan helped formulate the Democratic equivalent of what became, in the subsequent George Bush years, the assertion of unitary executive power. There's zero evidence that Kagan would do anything to redress the right-wing tilt of the Supreme Court and plenty that she might exacerbate it. In her confirmation hearings as solicitor general, she entranced the right with her proclamations in favour of the 'War on Terror'.

Kagan is the worst possibility thus far to surface, but the other potential nominees are scarcely inspiring. There’s the mainstream liberal Diane Wood, who sits on the Federal Appeals Court in Chicago, and Merrick Garland, a neo-liberal Clinton appointee in the mold of Justice Steven Breyer, corporate America's judicial representative on the court. (Stevens, by contrast, began his legal career as an anti-trust lawyer.) Garland, another Chicagoan, is now on the Court of Appeals in the District of Columbia.

These are the three front-runners. The left has put up no preferred nominee, expressing concerns that the Republicans might filibuster. So, why not provoke just such a filibuster with a decent candidate? This appointment, remember, is Obama's last chance to vindicate the hopes of the left that our African-American president is, at least, as liberal as Gerald Ford and would leave as enduring a legacy as Stevens.

Come November, the Democrats will lose control of the House and Obama’s legislative powers will be extinguished, unless he goes into full Clintonian triangulation. It is now, and only now, that Obama can actually install a nominee with the ability to defend and advance progressive interpretations of the Constitution over the next 40 years.

Who could the left put up, as an assertion of what a truly progressive justice might look like? How about Steven Bright, of the Southern Center for Human Rights, the country’s leading anti-Death Penalty litigator from Kentucky? Or, David Cole, professor of law at Georgetown? Or, Pamela Carlan, at Stanford, a former counsel for the NAACP and openly gay?

There's one name that has been nervously circulated among progressive circles, that of Elizabeth Warren, currently head of the Congressional Oversight Panel on the banking bailout. Warren, a professor at Harvard Law School, is as close as we can now get to Stevens's economic populism and has been eloquent on the topic of corporate skullduggery and on the pro-bank tilt of the bailout.

She would, actually, be a shrewd choice for Obama, because it would turn the Supreme Court confirmation hearings into a debate on economic justice, consumer protection and regulation of Wall Street, where Warren’s Republican opponents would be forced to take the side of the rich, at a moment when the rich are not popular with a large number of Americans. Don't hold your breath.

This column was written with 'CounterPunch' co-editor Jeffrey St Clair. ·