Obama’s court appointment sure to be disputed
Ron Eachus
May 18, 2009
When I returned from a lengthy trip down the Grand Canyon of the Colorado River, it was time to forgo the isolation I'd sought and get a news fix on what had happened while I was out of touch with the world.
I found the Portland Trail Blazers lost in the first round of the NBA playoffs. A disappointment but no surprise. Then there was the swine flu outbreak that was closing schools. Unexpected, yes, but mostly over and not much to worry about since I'd probably been in one of the safest places I could have been to avoid it.
But an opening on the U.S. Supreme Court! Now that was both unexpected and a news event yet to fully unfold. Not much more than 100 days into his presidency and Barack Obama gets to fill a Supreme Court seat due to the resignation of David Souter, 69, who was appointed in 1990 by the first President Bush.
Since terms of Supreme Court justices are limited only by death or resignation, this is an opportunity that not every president gets. Jimmy Carter didn't get to appoint anyone. Nixon appointed four.
The Democrats have an overwhelming majority in the Senate that makes it easier for Obama to get his choice confirmed, but having a Supreme Court opening so early in his term at a time when the court seems ideologically divided and 5-4 votes are common ensures that he'll still have some battles to fight.
Within the party there is already plenty of lobbying from interest groups seeking consideration for one of their own: Women and Latinos for example. And there'll be arguments over whether a candidate is too "moderate" or not.
On the other side of the aisle it probably won't make much difference. Whoever Obama picks, he or she will be too liberal for the conservative right that dominates the Republican Party, and they will cherry-pick cases they can use to turn this into a front in their "Cultural War."
Their purpose won't be to affect the outcome; it will be to energize their constituency around their core issues of opposition to abortion, same-sex marriage, gun control, and separation of church and state.
The reality though is that Obama's appointment isn't likely to change votes on the court. Souter often sided with what was perceived to be the more liberal faction.
This has disappointed many who originally pushed for his nomination. To their dismay, he has been one of the court's moderate voices and unwilling to go as far as overturning the 1973 Roe v Wade decision establishing a woman's right to an abortion.
But that decision has held despite the fact the majority of court vacancies since then have been filled by Republican presidents. In fact, five of the 7-2 majority in the Roe v Wade decision were appointed by Republican presidents. Since then, there have been 10 appointments to the court. Eight of them under Republican presidents — Ford (1), Reagan (3), George H. W. Bush (2) and George W. Bush (2). Of the current nine members, seven came from Republican presidents.
The court has a way of moderating and corralling judicial extremism. It requires decisions to be based on facts and law, not ideology. Many landmark decisions, such as Roe v. Wade on abortion or Brown v. Board of Education on school segregation reflected a united, not a divided court. And when it comes to individual rights, conservatives often find common ground with liberals.
So Obama may best serve the country by choosing someone who can clearly and convincingly articulate American jurisprudence and who can intellectually stand up to the ideologues. And instead of someone who can be as liberal as the other extreme can be conservative, it just might take someone who can best work toward a broader consensus.
Who knows. Maybe this time that person will turn out to be more conservative than supporters thought they were.
Ron Eachus of Salem is a former legislator and a former chairman of the Oregon Public Utility Commission. His column appears on Mondays. Send e-mail to .