06 February 2009

Moving the Courts

The news late yesterday that Justice Ruth Ginsberg has undergone surgery for pancreatic cancer (her second bout of cancer in a decade) has, somewhat morbidly, raised the question of whom Obama might appoint to the court. The speculation about a replacement brings to mind the Monty Python skit that I've mentioned here before in which an ailing peasant repeatedly and loudly objects "I'm not dead!" as his neighbors try to dispose of his body. Indeed, Ginsberg is still with us and I hope she recovers fully.

It is nonetheless worth thinking about the general strategy the Obama-ites ought to adopt toward judicial appointments. This graphic from a recent piece in The New York Times summarizes research about which I've posted here before. The research conducted by a pair of reasonably right-leaning law professors at the University of Chicago, details just how far to the right our current court has swung. This is due to the fact that Republican presidents have appointed extremists and Democrats have appointed moderates. The upshot? Each member of the five court majority on the Roberts court is among the top ten most conservative justices ever (correction: since 1937) based on analysis of their actual voting records.* Of the sitting justices, only Ginsberg is (barely) among the top ten most liberal justices. (I do not know this for a fact, but I would wager that the rightward shift has been even more pronounced on the various lower level federal courts.)

The situation is outrageous. Obama needs to use whatever appointments might come his way to redress the extremist trend in the court. That would mean appointing one or more justices further to the left than Ginsberg, regardless of whom they might be replacing. and it means looking hard at the lower courts and deploying a strategy that will bring not just moderate, but left-leaning judges to the bench.

A pragmatist, after all, is not concerned with consensus, but with the robustness of debate and therefore with insuring a wide range of views can find expression therein. Put otherwise pragmatists are properly concerned with the uses of disagreement. And at this point the courts are a sure bet.
* You'll note from the graphic that the most recent departures from the court - O'Connor and Rehnquist - also were among the top ten most conservative.

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Blogger Buster said...

Each member of the five court majority on the Roberts court is among the top ten most conservative justices ever based on analysis of their actual voting records.

Small correction: "ever" should be "since 1937," I believe.

Thanks for bringing this table (which I had missed) to my attention. Those NYT graphics people deserve all the praise they've been getting.

06 February, 2009 11:31  
Blogger Buster said...

And totally unrelated to the main topic, but on peasants and dying, there's a great moment in Medvedkin's Happiness that shows a peasant attempting to commit suicide and being stopped by the Tsarist police. See for yourself!

06 February, 2009 11:40  
Blogger Jim Johnson said...

B -

Thanks for bringing the error to my attention. I've corrected the post.

And you are right too about the graphics folks at The Times.

06 February, 2009 11:55  

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