Entangled Alliances

photo credit: yeowatzup

Big political stories are like buses: you wait ages for one to turn up… well, you know the rest . In America’s case, last week saw two huge pieces of news descend on Washington. On Tuesday, Republican Senator Arlen Specter announced that he was switching to the Democrats, giving them (in theory at least) a 60 seat filibuster-proof majority in the Senate (see my last post for more on this).

No sooner had the potential political ramifications of this news sunk in than another mammoth headline hit the press: Thursday’s announcement that Supreme Court Justice David Souter will be retiring from the Court come June. This means that Obama now has to find some time over the next couple of months to slot in, between his massive domestic agenda and economic efforts, that most controversial and explosive of a President’s tasks: nominating someone for the Supreme Court and getting Congress to approve them.

Though it might not be obvious at first, these two game-changing events – Specter’s defection and Souter’s retirement – are closely linked, at least in political terms. Specifically, both have the potential to seriously affect Obama’s “summer of reform”. Over the next few months the President will be working with Democrats in Congress to pass landmark legislation on, among other things, healthcare reform and climate change. The success of these bills will depend heavily on navigating what looks set to be  a political minefield, thanks to a combination of an obstructionist Republican minority and the grandstanding of certain centrist Democrats.

In the case of Specter’s defection, it’s easy to see how this affects Obama’s legislative agenda- as long as Specter votes with his new party,  then no Senate Republicans will be needed to pass the big bills.  But the nomination process for Souter’s replacement, which will in all likelihood take place in June before any votes on healthcare reform or climate change legislation, could end up being just as significant for the President’s agenda.

First, though, a quick look at whether Souter’s retirement will affect the make-up of the Supreme Court. The simple answer is: no. The Court is currently in a precarious ideological balance: four liberals versus four conservatives, with the “swing” justice Anthony Kennedy in the centre, though as a recent spate of terrible 5-4 decisions have shown, it’s a decidedly conservative centre. Since David Souter is undoubtedly a liberal judge and Obama will almost certainly seek to replace him with another liberal, the doctrinal stalemate of the court will continue. However, this doesn’t mean that his pick isn’t important.

First, it matters what kind of liberal he appoints. On his time on the court, Souter was said to often be a big influence on Anthony “swing justice” Kennedy. Obama, then, would be wise to choose someone likely to be very persuasive when it comes to debating their colleagues on the Court – someone, in other words, who could help to ensure that Kennedy votes the right way on those 5-4 decisions.

Second, Obama has the chance to start building a foundation of liberalism in the Court that can last for many years. Souter is currently 69. By replacing him, Obama has the chance to add a liberal to the Court who is, to put it bluntly, relatively young. It’s likely that two more liberals will resign in Obama’s first (or second?) term – the aging John Paul Stevens and Ruth Bader Ginsburg. Obama therefore has the chance to begin what could, come the end of Obama’s presidency, have turned into a radical rejuvenation of the court’s liberal bench – a youthful influx that could last for decades.

But in the short term, it’s the political implications of the timing of Souter’s retirement that are of particular interest. Essentially, it’s all about perception – how the President is perceived by his colleagues in Congress. If Obama is to ensure that his big legislative set pieces come out in one piece, then he needs to be at the height of his powers when the time comes for Congress to vote on them. But if the votes come soon after a bruising battle over his Supreme Court pick, then Obama’s ability to force through the more controversial aspects of his set-piece legislation might be dulled – or even eradicated all together.

The danger for the President is very real, since Republicans will be preparing to wage war against whoever he nominates to fill Souter’s shoes. It’s true, as they themselves have conceded, that they stand little chance of preventing the appointment of a liberal candidate. But this doesn’t really matter. Supreme Court nominations are always a divisive, bitterly partisan and explosive affair. Back in 1992, black justice Clarence Thomas called his nomination process a  “high-tech lynching for uppity blacks who in any way deign to think for themselves”. Souter himself was no stranger to controversy: his appointment was marred by the calls of pro-choice groups to “stop Souter, or women will die” (it turned out, incidentally, that he was actually in favour of landmark abortion case Roe v Wade. Talk about the shoe being on the other foot!)

Given, then, that Republicans are getting increasingly desperate to halt in its tracks the bullet train that is the Obama presidency, it’s not unrealistic to imagine that this nomination process will be no less controversial than past ones. Should Republicans manage to make the most of their opposition to Obama’s nominee – the worst case scenario would be the uncovering of some controversial piece of information that forces him to abandon his first choice candidate – then the prospects for the President’s keystone bills would look much less bright. Republicans would be emboldened in their opposition and moderate, centrist Democrat Senators (a group that now includes Arlen Specter) would feel more confident in using the threat of a “no” vote to get their way and make the legislation less progressive.

But with the potential dangers of the nomination process comes a potential upside, too. If the last few months are any guide (including unanimous “no” votes for Obama’s stimulus and his budget) then congressional Republicans have decided that the most likely path back to electoral viability is to be vehement in their opposition to the new President – high  popularity ratings be damned!  Given this myopic strategy, it’s entirely possible that Republicans could overdo it in their attacks on  Obama’s eventual nominee and come across looking like, to put it politely, an unreasonable bunch of extremist obstructionists. The odds of such an outcome would increase dramatically were Obama to nominate a female candidate, given that there’s only one woman currently on the Supreme Court (Ruth Bader Ginsburg) -and even she may be retiring soon. Even worse for Republicans would be if Obama nominated a Hispanic candidate. There are no Hispanics on the Supreme Court and given the growing importance of their vote – Obama won the presidency thanks in large part to winning a staggering 62% of Hispanic voters – it would be very risky for Republicans to attack a Hispanic nominee.

Of course, the ultimate pitfall-in-waiting for Republicans would be if Obama nominated a Hispanic woman. Boy, would they be screwed! But is there such a candidate waiting in the wings? Well yes, actually, there is – she’s a Second Circuit appellate judge called  Sonia Sotomayor and it’s beginning to look like she’s the frontrunner to be nominated. And though I’m sure she’s being considered primarily for her judicial skills (her record is certainly excellent) I can’t help but think that, should she be selected, Obama’s team will be quietly thinking to themselves: “go on Republicans – rip her to shreds, I dare you!”

The crucial point here is that, should Republicans overplay their hand and fall foul of the nomination battle, then the resultant benefit that accrues to Obama – an influx of political capital, if you like – would not only make it harder for Republicans to derail the big healthcare and climate change bills but would also make it more difficult for centrist, attention-seeking Democratic Senators to threaten to vote against legislation unless people listen to their demands. After all, it’s less easy to face down a President when they’re still bathed in the glow of a decisive political victory.

What this means, then, is that the upcoming battle over who’s going to be the next supreme court justice is perhaps the most important of its kind for many years. Not only will it be the first step in laying the foundation for the possible future direction of the Court, but it also has the potential to play a decisive role in deciding whether Americans get universal healthcare and whether the United States can take the first steps to combat global warming. The summer of reform is almost upon us… and it just got a whole lot busier.