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We’ve arrived at a propitious moment. President Barack Obama has not only the right but the constitutional duty to nominate the next Associate Justice to the United States Supreme Court. That is an awesome responsibility.

Next Thurgood Marshall

President Should Nominate Next Thurgood Marshall—Ernest Canning

Should the president opt for political expediency by nominating someone whom he knows would please the Republican majority in the Senate? I think not.

The circumstance calls to mind the 1991 remarks made by the late Sen. Edward “Ted” Kennedy (D-MA). The occasion was a contentious Clarence Thomas Senate Judiciary Committee Confirmation Hearing. Kennedy likened the Thomas confirmation to a game of “Russian roulette.”

He explained:

If we confirm a nominee who has not demonstrated a commitment to core constitutional values, we jeopardize our rights as individuals and the future of our nation. We cannot undo such a mistake at the next election or even in the next generation.

Obama should follow the same advice Sen. Bernie Sanders has given to the American electorate. “Think big!” He should settle for nothing less than a legal giant — for the next Thurgood Marshall.

Roberts’s Lament

Chief Justice John Roberts expressed concern that a partisan confirmation process would damage the Court’s image for impartiality.

Sorry, Mr. Chief Justice, but it’s a bit late for that.

The death of the ethically challenged Justice Antonin Scalia brought with it an end to an horrendous era. It has entailed the reign of what Law Professor Cass Sunstein described as the “radicals in robes.”

An extraordinarily partisan 5-4 majority forever tarnished the Court’s image for impartiality when it staged a “judicial coup.” Bush v. Gore wasa case that, according to the renowned constitutional scholar Erwin Chemerinsky, should have been summarily dismissed. The case, he wrote, was not justiciable because

  • George W. Bush lacked standing,
  • the case was not ripe for review, and
  • the case involved a political question.

The partisan five displaced the people’s right to “elect” a president with the Court’s right to “select” a president. And thousands who served in the ensuing illegal war of aggression in Iraq paid the ultimate price for the Court’s usurpation of power.

The reign of the radical right-wing majority did not arise by accident. It was the product of a GOP-led “counter-revolution” in law. Four of the right-wing five — Justices Roberts, Alito, Scalia and Thomas — had ties to the Robert Bork-founded, Koch-funded Federalist Society.

For those too young to remember, Robert Bork first became a household name during an event known as “the Saturday Night Massacre.”

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At the height of the Watergate scandal, a Democratic-controlled Senate Judiciary Committee insisted that Richard Nixon’s choice for Attorney General, Elliot Richardson, agree to name a special prosecutor to investigate issues pertaining to Watergate. Richardson appointed Archibald Cox, a former U.S. Solicitor General.

Cox’s aim was true. He went after the tapes of Oval Office conversations — the very tapes that ultimately led to the “smoking gun” revelations which supported Articles of Impeachment and culminated in Nixon’s resignation.

When Nixon tried to stonewall, Cox obtained a federal court order for their release. Nixon ordered Cox to stop pursuing the tapes. Cox not only refused but told Nixon he would seek a court order holding him in contempt. In succession, Attorney General Richardson and Deputy Attorney General William Ruckelshaus chose honor over personal loyalty. They both resigned. Nixon then turned to Solicitor General Robert Bork, who apparently had no ethical qualms about sacking Cox.

Appalled by judicial views that were not merely radical but subversive, in 1987 Bork’s nomination to the U.S. Supreme Court was rejected by the U.S. Senate Judiciary Committee. Senator Kennedy observed:

This debate has been a timely lesson in this bicentennial year of the constitution of our commitment to the rule of law, to the principle of equal justice for all Americans and to the fundamental role of the Supreme Court in protecting the basic rights of every citizen. In choosing Robert Bork, President Reagan has selected a nominee unique in fulminating opposition to the fundamental constitutional principles as they are broadly understood in our society.

What was considered subversive in 1987 became daily routine at the Supreme Court subsequent to 2000. The radical five took a giant step towards turning our great nation into an oligarchy via its infamous Citizens United decision. After gutting a key provision of the Voting Rights Act, the right-wing majority allowed racially-motivated Photo ID restrictions to prevent more than 600,000 lawfully registered Texans from voting in the 2014 mid-term election. Those prevented from casting a ballot were disproportionately minorities and the poor. And then there’s the latest act of defiance. The “radicals-in-robes” ignored the threat posed to the survival of our species by global climate change. They dealt a blow to a recent Paris climate change pact by temporarily preventing the Environmental Protection Agency from enforcing its coal emissions regulations.

Choices

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Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did – when President Obama won the 2012 election by five million votes – Sen. Elizabeth Warren (D-MA)

U.C. Irvine Law Professor Rick Hasen suggests that “D.C. Circuit Judge Sri Srinivasan is perhaps the most attractive potential Supreme Court nominee.” He reasons that, by nominating the “moderate” (conservative?) jurist, the president would “put pressure on” Senate Majority Leader Mitch “McConnell to allow a Senate confirmation vote.” After all, when Obama nominated him to the D.C. Circuit Court of Appeal, Srinivasan was unanimously confirmed by a 97-0 vote in the Senate.

I respectfully disagree. The last thing America needs is a Supreme Court nominee who has been “praised” by Sen. Ted Cruz (R-TX). Indeed, the fact that not even one of the Republican devotees to inequality opposed the Srinivasan nomination is deeply disconcerting.

At the bare minimum, the president would do well to impose the Sanders litmus test. After all, 80% of the American people agree with Bernie Sanders’s insistence that the disastrous Citizens United decision be overturned. The president is faced with a generational choice. He should seek a legal giant.

It appears that Tom Goldstein, founder of the SCOTUS blog, has come up with the ideal nominee in the person of 9th Circuit Judge Paul J. Watford. Watford, an African-American, was an Order of the Coif UCLA Law School graduate. His distinguished legal career included service as an Assistant U.S. Attorney who prosecuted white collar criminals. He clerked for Supreme Court Justice Ruth Bader Ginsberg and Judge Alex Kazinsky of the 9th Circuit.

Unlike Srinivasan, Watford’s 61 – 34 confirmation in 2012 was far from unanimous. But he did receive nine Republican votes — a fact that, according to Goldstein, “gives the Administration considerable ammunition to argue publicly that Republicans, by refusing to process the nomination, are blocking someone who is recognized to be qualified.”

ernest-canning

Ultimately, the decision exclusively rests with the President. We can only hope that he choses the jurist who best represents the aspirations of those who elected him in 2012.

Ernest Canning
Veterans for Bernie