The Democrats’ Dubious Record on the Supreme Court

One of the rationales generally regarded as a knockout among center-left types in the “who is less terrible, Romney or Obama” debate, is the idea that Presidents nominate Supreme Court justices, and Romney’s picks would be further to the right than Obama’s, particularly as far as their position on social issues like reproductive choice and gay rights are concerned.

Narrowly, that’s likely to prove to be accurate. And there are voters who are understandably unwilling to take any chances on these issues. However, the power to nominate is not the same as the power to appoint. It’s disingenuous for Democratic party operatives and their allies in the punditocracy to act as if the move of the court to the right is solely the doing of evil Republicans.

Hoisted from comments:

MontanaMaven says:

Democrats can block radical nominations. But they don’t. They let Alito, Roberts, Thomas, Scalia be appointed. Ginsburg is like Sotomayor and Kagan. Appointed for her pro-business leanings. Democratic operatives succeed in getting Democrats all riled up about abortion and gay rights and how the Supreme Court nominations are vital while hoping same Democratic voters don’t understand the real objective is to keep the pro business status quo. There was a New York Times Magazine article years ago called “Supreme Court, Inc.” on this. The last of Nader’s Raiders have gone down to defeat against the pro Chamber of Commerce Supremes.

Hugh says:

Sotomayor is a corporatist technocrat. Kagan is a backer of the vast powers of the Imperial Presidency and a corporatist.

I’ll not just see your two names but raise you two: Alito, Roberts, Thomas, and Scalia. There were always sufficient numbers of Democratic Senators, even when they were the minority party to block all 4 of these nominations at cloture (60 votes required). However, only a single roll call cloture vote was held, and that was on Alito. It failed because 19 Democratic Senators voted with Republicans to bring his nomination to a final vote. Further in the one case where Democrats were in the majority in the Senate and that by a solid margin, the Clarence Thomas nomination, Democrats were instrumental in getting him confirmed.

45 votes in the Democratic Senate caucus: 44 Democrats and the independent Jeffords

Samuel Alito: Cloture vote: 74-25 with 19 Democrats voting for cloture (that is allowing a final vote on Alito). Confirmed: 58-42 on January 31, 2006

John Roberts: No roll call vote on cloture so voice vote or unanimous consent. Confirmed: 78-22 on September 29, 2005.

56 votes in the Democratic Senate caucus

Clarence Thomas: No roll call vote on cloture so voice vote or unanimous consent. Confirmed 52-48 on October 15, 1991

47 votes in the Democratic Senate caucus

Antonin Scalia: No roll call vote on cloture so voice vote or unanimous consent. Confirmed: 98-0 on September 17, 1986.

I’m surprised anyone still uses the by now long discredited meme of “vote for Democrats or watch out what happens to the Supreme Court” or even more strangely in your case “Obama’s made great choices for the Supreme Court.” Obama never chose a straight up liberal, or God forbid, a progressive to fill either of the Supreme Court vacancies of his first term. At the same time, Democrats never blocked any of the nominations of the Court’s four most conservative Justices, and in the case of Thomas, even provided the votes necessary for his confirmation.

Yves here. From the 2008 New York Times article, Supreme Court Inc., cited by MontanaMaven:

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants….

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars…

With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business…

This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans?

Oh, and this article’s official publication date is March 16, 2008, which means it was released on the Internet on the previous Thursday, which was immediately before the Bear Stearns bailout weekend. And as we’ve chronicled on this blog, the split between the elites and ordinary citizens on the need to rein in banks and major corporations has only widened since then.

Even on social issues, Obama’s picks have been less than stellar. From Matt Stoller’s article, The Progressive Case Against Obama:

In terms of the Supreme Court itself, Obama’s track record is not actually that good. As a senator, Obama publicly chided liberals for demanding that Sen. Patrick Leahy block Sam Alito from the Supreme Court. Meanwhile, Obama-appointed Supreme Court Justice Sonya Sotomayor has in her career already ruled to limit access to abortion, and Elena Kagan’s stance is not yet clear.

Similarly, if the Democrats were seriously concerned about the composition of the Supreme Court, why has there been not a peep out of them about impeaching Clarence Thomas, who lied during his confirmation hearings, made serious misrepresentations on financial disclosure forms, and when caught out on having given a speech at a Koch Brothers-funded event, claimed it was a mere “brief drop by” when his own disclosures show he was reimbursed for a four day visit? In addition, Thomas failed to recuse himself from hearings on the Affordable Care Act for instance, when his household had received $1.5 million from groups that were against the ACA. Oh, and it’s not as if he’s any loss on other fronts. Thomas has managed the incredible achievement of remaining silent on the Supreme Court bench for a full five years when no previous Justice has done that for even a single term.

What’s troubling here and elsewhere is that the Democratic hackocracy relies on the notion that no one will check the record on their efforts to assign blame for where we stand, legally and institutionally, on the Republicans. Unfortunately, the combination of powerful messaging operations, a lapdog media, and disengaged voters means this assumption is generally correct.

But it takes only a bit of digging to establish that on the Supreme Court, as with so many issues of concern to the public, it takes two to tango, and the Democrats are plenty culpable in accommodating the efforts of powerful interests to move the governance of this country to the right.

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  1. Daikon

    Our current VP blocked four female witnesses from appearing at confirmation hearings in 1991 for Clarence Thomas. They wanted to vouch for Anita Hill’s credibility, which was being literally savagely attacked by Thomas’ supporters, but Biden, Judiciary Committee Chair, refused to allow them to speak, thus allowing Thomas to narrowly win confirmation, since many senators had been persuaded by propaganda that claimed Hill was an unreliable witness. So we have a Dem to thank for almost certainly assuring Thomas’ confirmation. We can’t blame only the Repubs for Clarence. Perhaps, however, Biden was too busy making plans to deregulate the credit card industry to see the serious consequences of gagging four women who had a right to speak out on an important issue.

    1. sgt_doom

      You make some excellent points, but perhaps that was simply part of the script (none of those four witnesses actually personally knew Anita Hill, only by corresponce, and several of them had criminal records????)?

      That entire Clarence Thomas affair was bizarre: Thomas gets appointed, Biden goes on to become VP, and Anita Hill goes on to a sterling academic career (after returning to Oral Roberts University with no problems whatsoever — an ultra-conservative religious institution, and her appointment was originally gotten for her by her fellow conservative, Clarence Thomas).

      Strange that everybody succeeded, after such an event? Almost makes one suspect it was all managed, after the sounding defeat of the attempted judicial appointment of Bock?

      1. Waking Up

        According to the bio information at Wiki, “Hill then became an assistant professor at the Evangelical Christian O. W. Coburn School of Law at Oral Roberts University where she taught from 1983 to 1986. In 1986, she joined the faculty at the University of Oklahoma College of Law where she taught commercial law and contracts.”

        The hearings for Clarence Thomas nomination to the Supreme Court occurred in 1991. She worked for the University of Oklahoma in 1991 and later joined the faculty at Brandeis University in 1997.

        So, it would appear your basic premise, (at least in regards to Anita Hill) is incorrect.

    2. Teejay

      I’d be interested in any details or sources you may have to elaborated on then Senator Bidens role in deregulating the credit card industry.

  2. ltr

    I appreciate Matt Stoller’s writing quite a bit, finding it thoughtful and incisive about issues that are often overlooked by traditional columnists. What puzzles me is why a “liberal” or even “centrist” such as Brad DeLong feels it necessary to savage Stoller:

    Why would DeLong, seemingly mindlessly because I find no reason here, attack Stoller?

    1. YankeeFrank

      Matt Stoller shows DeLong for what he is: a right of center faux-progressive, and one of those whose panties get in a twist when the right’s dementia, and “the left’s” complicity, is described in detail.

      DeLong is not an honest participant in the economic controversies of the day, and is weak and waffling on many important issues. Matt Stoller is not.

      1. ltr

        Writers like Stoller or Yves or Lambert or Glenn Greenwald are ever so necessary and to be applauded.

        1. Lambert Strether

          And adding, one of the roles that the blogosphere does and should play — both in posts and in the comments sections — is developing new strong writers with critical thinking skills. (This is distinct from the model where the role of the blogosphere is to support this or that party or faction, where “any stick to beat a dog”-style discourse is the order of the day).

          So thanks* but and so the more strong voices the better.

          * [lambert blushes modestly]

          1. MontanaMaven

            This is why this site and yours, Lambert, are great training camps at honing our skills because of the (mostly) thoughtful and well-informed people who frequent this place.

      2. bobh

        Agree. DeLong, who did a Treasury stint under Larry Summers (his mentor) and Clinton, still believes in letting centrist Democrats administer the government and manage the global economy on behalf of corporate interests. To this end, he attacks Republican foolishnes, but a major part of his agenda is to also attack those who criticize Democratic fealty to pro-corporate elites, except in cases where the critic is an important member of the economics fraternity. His vain and narcissitic prose mannerisms and his frequent hypocrisy make his blog unreadable for me.

      3. sgt_doom

        Thank you! DeLong has long been a poseur, just like any number of other rightwingers claiming to be “liberal” or “progressive” — routinely makes my blood boil…..

        1. Ms G

          Garret’s “fauxgressive” is a neologism worth launching! Another blossom from the NC Peanut Gallery space!

        2. Ms G

          Garret’s “fauxgressive”: a neologism worth launching! Another blossom from the NC Peanut Gallery space!

    2. Lambert Strether

      It’s interesting that DeLong finds the rhetorical tactic of feminizing Stoller appropriate. Shades of 2008. Shocker, I know.

      Nice also to see DeLong, who last I checked had a professional reputation to maintain, blessing LeMieux. Ah well, the way of the world. “Any stick to beat a dog.”

  3. Middle Seaman

    First, Ginsburg is like Sotomayor and Kagan. Appointed for her pro-business leanings.M Or: Sotomayor is a corporatist technocrat. Kagan is a backer of the vast powers of the Imperial Presidency and a corporatist.

    This name calling not only is factually wrong, it is hateful and very Tea Party-like. Ginsburg is probably the most liberal justice. What is corporatist technocrat? It sounds like a term taken out of Pravda.

    Second, todays Democratic party sits in dead center. Liberals in congress are way too few and lack power. Obama, right of center, failed in nominations especially in lower courts. The party also became a business supporter and abandoned workers and unions. You are all right; there was no reason to support Alito and Roberts.

    Third, there is no left left. Instead, as seen above, the left is a Tea Party like hate machine. They hate uneducated people, they hate Republicans, they hate Clinton, they hate Israel, they hate everyone with ideas even slightly different from them. As an old style, and old, lefty since childhood, I am ashamed of my colleagues. Clearly, politically we are useless. Don’t expect too many judges that side with us.

    Fourth, I can do without Stoller.

    1. citalopram

      “…they hate Republicans, they hate Clinton, they hate Israel, they hate everyone with ideas even slightly different from them.”

      Good. We need more intolerance and hate from the left.

      1. Lambert Strether

        No, we don’t. There is quite enough hate in the world already.

        Even arguing from a purely pragmatic point of view, the argument against strategic hate management is exactly that as against bullshit management and Orwellian discourse:

        We don’t have the budget for it. Managing the vast structure of bullshit and hate and lies that is our current system of electoral politics is extremely expensive and takes highly trained people (mostly from the “creative class”).

        1. citalopram

          I will not tolerate your intolerance!

          Peace, love and dope has come and gone. Time to take a page out of Lenin my friend. Time to get militant.

          I wanna get militant
          I wanna get militant
          Take a little piece of my heart

      2. Beppo

        It would be so beautiful to see a muscular left rise again. If anything could cause its public emergence, the populist betrayals of Obama, and the democratic party’s unapologetic sprint away from unions and people, toward giant bank shaped persons, ought to be it.

        O W S led to more organization on the real left, rather than the relative left, than there has been in a very long time. Organizing takes time, but the sheer weight of people will eventually hard to ignore. Go USA!

      3. Yves Smith Post author

        My goodness, projection! Making a critique, backed up with logic and evidence, isn’t hate, but since you don’t like it, and seem unable to rebut it, you’re going to vilify the source.

    2. YankeeFrank

      Ginsburg is the most liberal justice, but that’s not saying much. And a corporatist technocrat is what Obama is. Its not some strange term devoid of meaning. It refers to a wide swathe of “our” leadership these days, that hide their ideology behind a patina of technocratic expertise, pretending that there is no ideology, only practicality, behind the actions they take. They are liars because they are immersed in the neoliberal viewpoint and all of their decisions favor wealthy interests over the people. The bureaucrats that are running the European Union are corporatist technocrats: they are saving banks at all costs and imposing horrible, ignorant, neoliberal austerity on the peoples of Europe regardless of the effect on civil society and the people, with the goal of siphoning what little surplus they can skim off the top of the economies they are crippling to pay debt service on fraudulent loans to banksters throughout the more powerful states of Europe.

      Do you still have any questions on what a corporatist technocrat is? Okay, as I stated above, Obama is one. His policies are firmly designed to assist banksters, regardless of the continuing criminality and destructiveness of their actions. He has an essentially top down, trickle down view of the economy despite his rhetoric, which is why 93% of the income gains in the past four years went to the 1%. He is a corporatist because he favors large corporations over people, and a technocrat because he hides his bias behind a veneer of proficiency and precision, pretending that he has diagnosed an illness and is prescribing the only medicine that will work.

      1. Valissa

        Corporatist technocrat is a pretty decent label as labels go.

        “pretending that there is no ideology, only practicality”

        I really don’t think they do have an ideology, I think it’s straight forward money and power games. My observation is that the closer one gets to the center of power, the more ideology fades away to conformance with the elite one wishes to be a part of. I think the word “ideology” is overused and is a shortcut for more descriptive and accurate language. Please note that I’m not saying that there is no ideology, simply that it’s much less about that than intellectual types think. The basic human instincts of greed and lust for power are much better explanations that adherence to some sort of ideology. Why does anyone pick a particular ideology anyway? Because of their underlying human nature. Ideologies are basically intellectual excuses for human behavior, IMO.

        1. MontanaMaven

          Good thoughts and another reason why Matt Stoller should be applauded. He is moving away from the elite and all its enticements of money and power. Yes, you can’t live on principles, but you can’t really live without them, as Orwell would say.

        2. swendr

          Right. Not ideology. It is simply their solidarity with the thieving corpos that that they wish to conceal with pragmatism and professionalism.

    3. sgt_doom

      “This name calling not only is factually wrong, it is hateful and very Tea Party-like.”

      Would you kindly point out to the rest of us the name of any individual Kagan appointed when she headed the law faculty at Harvard, who was not a member of the ultra-neocon Federalist Society?

    4. Hugh

      You have interesting ideas on geometry. If there is no left left, as you say, how can the Democrats be occupying the “dead center”?

      1. Aquifer

        Hugh, I suppose if there is no left and only right, then maybe the center is indeed dead, as in “dead center” ;) so Dem apologists are zombies and just don’t know it yet …

    5. Aquifer

      MS- if you consider voicing an opinion that Ginsburg is pro business is “name-calling” and “hateful” – methinks you must have led a very sheltered life …

      These days it seems any old opinion we don’t agree with is called “hateful” and its holder a “hater” – shucks, takes the punch right out of that sentiment – it used to mean something significant, impressive, powerful now its used where “i disagree and think you are wrong” would do just as well –

      TSTM, that is ….

    6. Aquifer

      MS- if you consider voicing an opinion that Ginsburg is pro business is “name-calling” and “hateful” – methinks you must have led a very sheltered life …

      These days it seems any old opinion we don’t agree with is called “hateful” and its holder a “hater” – shucks, takes the punch right out of that sentiment – it used to mean something significant, impressive, powerful now its used where “i disagree and think you are wrong” would do just as well –

      ISTM, that is ….

    7. Teejay

      What nonsense. I’m as liberal as they come and I don’t hate Clinton. I don’t hate Republicans or Israel or uneducated people. A Tea Party-like hat machine? More nonsense.
      I think what you’ve written is idiotic and uninformed.
      I don’t think you are uneducated and I certainly don’t hate you. You’ve made broad generalizations about a group without any evidence to back up your assertions.

  4. Klassy!

    One of the rationales generally regarded as a knockout among center-left types in the “who is less terrible, Romney or Obama” debate, is the idea that Presidents nominate Supreme Court justices, and Romney’s picks would be further to the right than Obama’s, particularly as far as their position on social issues like reproductive choice and gay rights are concerned.
    Yes, I have a family member that is under the impression that this argument is devastating. And then she starts in with ROE v. WADE!
    I ask her to show me any real evidence that the Republicans would actually actively seek to overturn Roe v. Wade. Where is it? The real power players– outfits such as American Crossroads and Americans for Prosperity make no mention of these social issues on their web site.
    Invoking Roe v. Wade works to keep both party members in line. I would like to have been a fly on the wall when the DLC crafted their very own “values voters” strategy.

      1. Jonathan

        “Institutions will try to preserve the problems to which they are the solution.” -Clay Shirky

  5. Ashamed

    Alas, the Supreme Court has NEVER been anything but a brake on democracy in America, since its inception. You can count on one hand the number of decent human beings who served on the Court since the country began; none are there now.

    The failure of the most democratic branch of government, the Congress, to deal with this problem (impeachment, anyone?) is why the short, readable Constitution takes up hundreds of feet of shelf space. For the most part, these volumes are devoted not to interpretation but to vetoing good democratic ideas on behalf of the rich few who evidently feel they are entitled to whatever they want.

    Now that Rove and company have fixed the game, the rich don’t have to worry. Obama or Romney will win and the 1% will have their way despite the fact that they are destroying the planet and everything else.

    Makes you want to believe in historical cycles.

  6. jake chase

    Since Nixon appointed Burger and Rhenquist, appointments to the Supreme Court have involved one useless mediocre hack after another. I cannot even remember most of their names, and I challenge anyone to point to a single decision of the last forty years which has undercut the power of our mendacious corporate plutocracy. I don’t care what color or ethnic origin gender any of them happens to feature, and neither should anybody else.

  7. Norman

    It’s no wonder why the youth-18-25 today don’t even care. They see that “Cyberdine” or which ever company name you put on it, is taking over the world, that there’s nothing they can do about it, that the vast middleclass is sitting on their collective butts, doig what?

  8. TK21

    Your argument about the Democratic party is absolutely correct, Yves, but let’s not forget Obama’s individual record on the “big two” is especially dismal. His administration banned sales of the morning after pill to teenagers and wrote harsher abortion restrictions into the Affordable Care Act than was necessary to gain its passage. And Obama has defended the Defense of Marriage act and dragged his feet on Don’t Ask Don’t Tell (both of which, of course, were signed into law by a Democratic president).

  9. fladem

    Remind me again how the Bush appointees voted on opening the floodgates to corporate money in politics. Oh, and how did the Obama appointees vote.

    Let’s see, the Bush appointees were in the majority that opened the floodgates, and the two Obama appointees were in the minority that were against it.

    Of course, all of this ignores Roe v. Wade, which is gone with the next GOP nominee. I read above that people think Romney won’t do anything about Roe: which is nonsense. He will appoint a pro-life nominee, and it will take less than a year for a case from the states to get before the court.

    It is nonsensical to say he won’t do anything about Wade. But stick your head in the sand if you want to.

    1. Colin K

      You’ve not demonstrated any sort of understanding about how certiorari is granted. Par. Course. Et, al.

      SCOTUS can’t just erase things. At this point, abortion-on-demand is just not justiciable. It was an exceptional exception in the first place. And not likely to be repeated any time soon. The Roberts Court, in any iteration, will likely not take up the issue. (As his publicly-pressured turn on ACA demonstrated, Roberts is severely wedded to the integrity of the Court. Which, in plain English means he’s well aware of his role holding together some very vital aspects of the plutocratic duopoly’s Kabuki theatre.)

      It’s really tiresome for reflexively-fearful Democrats to trot out these increasingly-predictable bogeyman when said partisan fear-mongering Chicken Littles aren’t even apprised of very basic tenets of constitutional law. Yawn.

      1. fladem

        The lack of any real argument in your response is remarkable. The Court needs four votes to grant cert – and they have them now. They do not now have the votes to overturn Roe. One more and the will.

        The notion that this is not justicable is laughable to anyone familar with the Webster decision.

        The fact does not fit your case: so instead of saying that it is better than Roe be overturned than Obama be re-elected – which at least is defensible – you embrace denial.

        Instead, you say that it is “tiresome” largely because you are not adult enough to face the consequences of the choice you advocate.

  10. briansays

    as one who had the benefit of seeing anthony kennedy for a year as a con law professor i was never troubled by nor did i see any of the rabid ideology pushing a specific political agenda that you see in scalia and thomas and now alito–yes, he is a conservative, hello reagan won the election– but he also appeared as a conservative, a jurist who paid some deference to precedent and did not see his job as rewriting history

  11. Klassy!

    This whole story is a huge failure of the press. What goes on in the Supreme Court is not all about abortion and affirmative action. I know little about constitutional law. Unfortunately there are few sources that discuss all the court rulings of the Supreme Court.

    1. Procopius

      A blog I’ve found to be very accessible is Balkinization, Prof. Balkin does not think it demeans him to use English to explain his opinions. Ordinary English. Another constitutional law blog I’ve seen mentioned often but am not familiar with myself is SCOTUSblog. From comments I’ve seen they are more likely to cover the obscure current cases as well as the cases the MSM notice. If you check out Crooked Timber and The Monkey’s Cage from time to time you may find more helpful references, although those two are more about political science, and can be pretty wonky at that.

  12. Adam K.

    Don’t understand the purpose of these articles few days before the election. Not voting is a vote for the republicans and for more Justices like Alito, Scalia, Thomas and Roberts. Although the democratic nominated justices may be supporting corporate interests, like the vast majority of this country, they still voted against citizens united and for other progressive agenda. We cannot allow ourselve to be directed by ideological thinking, that could be done a day after the election or when there is an true progressive alternative, but until then, the lesser evil is the logic for me.

    1. sgt_doom

      Adam K., you are like that proverbially frog in boiling water, on his last breath who still hasn’t figured out he’s being boiled to death!

      Whatever became of habeas corpus? Detention that wasn’t indefinite? Due process?

      The people should have immediately risen up and dissolved the US Supreme Court after they rendered the most anti-democracy, anti-citizen, anti-human rights’ decision possible with their decision on Citizens United (litigated by Koch Industries’ counsel, Ted Olson — founding member of the Federalist Society, former counsel for Reagan during Iran-Contra, litigated on the stolen 2000 presidential election with Bush v. Gore, and last seen prepping Paul Ryan for his VP debates).

      1. Adam K.

        To sgt_doom and all the rest who bothered to answer my post,

        I’m aware that the water is boiling, and I do understand the consequences of my approach, but it is simply more practical in the short run. Not participating in the upcoming elections, considering that republicans will go to vote, means handing them the country without a fight. In the morning after the elections you will realize what you have done and what is at stake: healthcare, abortions, women rights, economics, voter rights, unions and I can continue on and on. It is better to secure part of our rights than risk it all.
        Go to vote! It is your right and your obligation and for one day stop dreaming of Utopias…just one day…so you won’t regret it.

    2. bobh

      Then you should vote for Barack Obama, the lesser evil. Must be nice to be able to turn your ideological thinking on and off like that. Maybe you should run for office.

    3. Klassy!

      Yes, don’t print these articles before the election. As we know, the D blogs will be all over them after the election. Or the even more important stuff– you know– OMG! What is that craazy Sarah Palin up to now!

    4. Jonathan

      Whose purposes do an uninformed electorate serve? Those who would deny you knowledge seek to exercise power over you.

    5. propertius

      Don’t worry, Adam – if there had been any real danger of Citizens United failing I’m sure at least one Democratic appointee would have voted for it (just as Roberts voted to uphold the ACA).

    6. Plinue

      Don’t understand the purpose of these articles few days before the election.

      Because elections are precisely when politics is supposed to be discussed? I don’t see how you can say otherwise unless you think think democracy should be only for show.

      1. Adam K.

        Definitely NOT a party advocate simply a concerned citizen and a person who reads this blog regularly, and mostly agrees with the views that are presented here.

        1. Waking Up


          Are you truly unable to understand why some people may not want to vote for the Democratic party candidate who has made our standing in the world worse with on-going drone missile attacks, a “kill list”, a supposed “healthcare” bill which mandates we purchase private health insurance (which increases THEIR profits but not our healthcare services), on-going destruction of our individual civil liberties, and of course, the complete lack of criminal liability for the financial sector, among so many other issues. Perhaps you see the other candidate as worse. I see them both as so morally corrupt that my conscience will vote for neither. I will vote for a third party candidate if for no other reason than to express my anger at having two completely corrupt candidates running for the position of President of the United States, and to let it be known that I wasn’t apathetic.

  13. MikeJake

    You can’t simply bemoan Democrats for voting for the current conservative justices that are on the Court without putting forth some conservative judges who would have been better alternatives at the time (and really, we’re going to blame today’s Democrats for justices appointed over 20 years ago?). Good luck finding one who supports abortion rights; at best, you might find someone who professed to be ambivalent.

    If you can’t name anyone who would have been clearly preferable, then what do you propose the Democrats should have done? Surely you realize that there’s no way the Senate can indefinitely block any and all nominees to the Court. And I find it amazing that people would criticize the Democrats for not utilizing the cynical strategy of obstruction that the GOP has embraced in the last four years, the same strategy that has ground our government to a virtual halt, stained our image internationally, and contributed to further justifications for vesting more and more power with the president. Embracing that strategy has ensured that Republicans won’t be getting my vote for the foreseeable future, and I’m shocked that people would advocate its use as a normal part of governance.

    1. Lambert Strether

      Why not block everyone? The Republicans came as close to that as makes no difference.


      Because you can’t have it both ways:

      1. ZOMG!!!! Supreme Court justices are the most important political outcome EVAH!!!!! (pre-election)

      2. Comity and respect for process mean that all we can do is attempt to moderate Republican judicial nominations (post-election).

      Well, which is it? Pre-election outcomes or post-election process?

      1. MikeJake

        You really think America would tolerate a Supreme Court with only 8 justices on it for an entire Mitt Romney term? Never going to happen, and it’s not because the Democrats are weak, it’s because that’s how the system is supposed to work. I noticed Obama was able to make a couple of appointments, even as the vacancies in administrative agencies and the Fed piled up.

        And I’ll repeat, our system can’t work if the Senate is engaged in pointless obstructionism for political ends. A tit-for-tat response by Senate Democrats under a Romney presidency won’t sober up the hardcore partisans. The only reason you want to see it is that it would give you exciting brinksmanship and political drama to write about.

        1. Hugh

          “And I’ll repeat, our system can’t work if the Senate is engaged in pointless obstructionism for political ends.”

          Our system doesn’t work. What’s your point?

        2. Yves Smith Post author

          America has tolerated a far more serious threat, that of a sitting president saying he has the right to kill any citizen with no due process as long as he has declared the murder victim to be a “suspected terrorist”.

          They’d “tolerate” this with the bat of an eye. The right wing media would go into meltdown mode, but the broader public is an entirely different matter.

          1. MikeJake

            I would never downplay how serious an issue that the assumption of due process-free killing powers by the executive is. But if you really believe that the vast majority of Americans don’t have much more pressing, non-theoretical concerns than Obama targeting them with a drone, then you need to climb down from your ivory tower.

            A Supreme Court with vacancies for an extended period would be too disruptive to persist. For starters, the media would never shut up about it.

          2. Yves Smith Post author

            The American public does not care that much. It would quickly become business as usual. I have no idea how old you are, but during the Clinton era, the media tried to whip up public interest in Republican obstructionism re Federal judges. That got no traction and now that’s become pretty normal. Ditto R obstructionism re Agency appointments.

            And in the unlikely event the public were to care, the Dems could haul out a very very long list of things the Rs have obstructed (including personally reasonable Fed governors) and point out that the R precedents here are vastly longer than the Dem.

            Look, the public is standing pat as Social Security and Medicare are about to be gored. The fact that they won’t get up in arms about something that affects them personally says this sort of obstructionism won’t get far out of the Breibart ghetto.

        3. lambert strether

          I see the word “repeat,” but I don’t see an answer to my question. What’s priority? Outcomes or process? I’m betting you have no answer because you can have no answer.

          As for tit-for-tat, AFAIK, that’s a well-known strategy for succesful outcome in game theory (with occasional random variations to through the other guy off balance).

    2. propertius

      we’re going to blame today’s Democrats for justices appointed over 20 years ago?

      When they’re the same Democrats, absolutely.

  14. Aquifer

    “Today, however, there are no economic populists on the court, even on the liberal wing.
    ……the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets ……..many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy ..”

    Heh, for all the economic populism I see touted there seems to be a distinct lack of enthusiasm for the “P” word – protectionism. Why is that? Lefties won’t approach it, equate it with “isolationism” which is a lot of hooey, but ISTM that one approach to getting power back for labor that would do an end run around this pro business court would be to use the mechanism that worked for so long – protect US industry and by “US” i mean that done IN the US. That was the leverage workers had – literally, their labor. As long as business needed that they had to deal with them – once “free trade” became the magic talisman, that leverage disappeared. So when all those blue collar folks lost their jobs in the 90’s (which, as they say around here, was a feature, not a bug) what did “progs” do – marched in Seattle then voted for free trader Gore …

    This pro business court will be around for awhile – as this piece points out, there are NO economic populists on it. But that does not mean there is no way around it. Granted it can rule against labor, but at the end of the day if business cannot profitably import from abroad, it will have to deal with labor or have no product. The strike has no power now for a number of reasons – lately because of high unemployment (another reason for Green New Deal), but it has had the legs kicked out from under it because of the credibility that “free trade” gave to the business threat of “Heh, take these terms or we will just move your job overseas”, and the left didn’t say “boo”, just mumbled their rather pusillanimous “fair trade” routine, – I started voting Nader in ’96, because he, and Perot, were the only ones raising real issues re NAFTA, even if they didn’t come out 4square for “P”, and it has only gotten worse …

    Want to put a dent in the SC Big Business bent – and return power to workers here? Start talking “protectionism” – they can’t touch that … The only time one has any real leverage for anything is when one is needed for something ….

    1. sgt_doom

      …economic populists…

      Once upon a time referred to as “sociological jurisprudence” beginning around the time Louis Brandeis practised the law (he was the guy who founded pro bono work by attorneys, and wrote Other People’s Money and How the Bankers Use It — the term OPM first used by Adam Smith, Wealth of Nations).

    2. jonboinAR

      I’m all in favor of some protectionism, to protect my salary and the environment. It seems obvious to me.

      1. Aquifer

        To get an idea how scared the business community is by such a prospect, just watch and listen to the gasping gurgling noises produced in the MSM if the word comes up – methinks a real push in this direction would leave the court a tad irrelevant …

  15. Hugh

    While it is true that Republicans have been stonewalling Obama’s judicial nominees, it is equally true that Obama has made no effort to push his nominees through. Nor has the Democratic Senate done so by ignoring holds, scheduling hearings, or forcing Republicans to actually engage in filibusters. Indeed to show what a low priority Obama has placed on the federal judiciary, of the current 79 judicial vacancies, he has only bothered to make nominations for 34 of them.

    With regard to the Supreme Court, Article II, Section 2 of the Constitution states the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

    In the past, there was a tacit agreement that conservative Presidents could appoint conservative justices and liberal Presidents could appoint liberal justices. This broke down with Bork when Reagan nominated a radical conservative. Though the nomination failed, it was in retrospect a great conservative victory. Since then conservative Presidents have felt comfortable nominating radically conservative judicial candidates and Democratic Presidents have adopted, some would say embraced, the habit of nominating conservative and center-right ones.

    So to restore the previous balance, liberals would need to nominate and see confirmed liberal justices and judges even as they block extremist conservative ones. It shows how out of whack our politics are that this is even deemed controversial.

    1. MikeJake

      Just what is it that makes a conservative SC nominee an “extremist conservative”, and who are the moderate conservative alternatives?

      1. Hugh

        I am not the Republicans’, the Democrats’, or your nursemaid. I have no interest in coming up with a list of acceptable conservative possibilities. You have some bizarre idea that I must do the conservatives’ job as well as my own. I don’t. We have in the Constitution a process of advise and consent to vet nominees as to their suitability. This does not mean doing somebody else’s job for them but to act as a check upon them.

        My thinking that justices like Alito and Thomas are unsuitable doesn’t mean I have to come up with conservative alternatives to them. That would be a job for the Republicans. For my part, and quite appropriately, I would prefer to see progressives in those positions.

        As for your question what makes an extremist judge, I guess you have been off planet since Bush v. Gore. I would say an extremist judge is one like Roberts who pledged to respect stare decisis in his confirmation hearings and promptly forgot it once confirmed. I would say anyone who espouses the quack theory of original intent like Scalia is an extremist. I would say that the conservatives who sought to overturn habeas corpus in Boumediene are extremist. Those justices who stood Title VII on its head in Ricci are extremists as are those who came up with Heller and Citizens United.

        You make it sound like it must be very, very hard to distinguish conservative from extreme. But it actually is pretty easy. It makes me wonder why you are raising what are irrelevant, extraneous issues.

        1. MikeJake

          No, I’m simply wondering who these magical moderate conservative nominees are that the Democrats should be holding out for.

      2. Lambert Strether

        I don’t track judicial nominations. If you want to go look, I’d suggest judges who struck extensions of executive power under NDAA and surveillance; judges who upheld the rule of law in foreclosure cases; judges who upheld the Bill of Rights over the onrushing police state; judges who upheld medical marijuana laws, and so forth.

        They do exist, and a “progressive” administration should be able to find and nominate them.

        1. Yves Smith Post author

          Jed Rakoff couldn’t even get on the appeals bench, and he’s hardly a flaming liberal (look at his light sentence for Gupta).

    2. neo-realist

      The dems would have to not only elect more progressives to the senate and the house get more progressives on the court, select house and senate leadership with spine that will proactively engage in those procedural maneuvers to get more progressive judges in the courts.

      It would take a huge zeitgeist shift in the democratic party for these things to occur, however, I don’t believe we’ll be seeing that shift for a while if at all.

  16. rob

    the supreme court are a bunch of hacks.It doesn’t take legal training to see the record of the court is unfair.they pretend, their hands are tied at times,while marching forward against the public good every time….but they have no problem allowing money to get whatever it wants.They let the powerful have immunity from all sorts of crimes.they give standing to fascists; theocrats,plutocrats,and corporate prostitute lawyers,while they ignore and deny standing to anyone wronged by any of them.
    they don’t preserve the bill of rights.except for some narrow second amendment stuff… the rest of it be dammned,as far as they are concerned.But they don,t have a problem with the illegal wars or the illegal domestic policy of our fledgling police state.The country is speeding down the wrong path, with the supreme court in the back seat.
    the supreme court saw nothing wrong with genocide,when it was manifest destiny,or slavery,when it built fortunes,and saw nothing wrong with breaking treaties ,either to the indian nations, or modern day geneva conventions…
    when they are on the right side of history, it is only because the society is already there.and then they have to move precedents incrimentally to take us backwards,as they are doing today.with these free trade, fascists at the helm…did I say fascists?… I mean corporatists…the more genial term for the same thing….
    and never mind republican or democrat..
    away of looking at these people ought to be what groups are they belonging to….look at the FEDERALIST SOCIETY members…john roberts,sam alito,clarence thomas,and anton scalia as well as robert bork,ken starr,c bowden gray,ed meese,spencer abraham,alberto gonzalez,ted olson,orinn hatch,ann coulter…to name just a few… not to mention the number fo federalist society members who comprise the circut courts of appeals,and I do mean ALL of them.These aren’t people who believe in federalism(except its ability to coerce control and the early federalist stance AGAINST the bill of rights being included with our constitution),this was a group formed in 1983, to fight religious social causes thru infiltration of the legal system with “activist” judges to bring about change…. and they surely have…
    then you throw in the council on foreign relation, and aside from some of the afforementioned,there are stephen breyer,ruth bader ginsbug,and sandra o’connor was too…another group formed from the british roundtablers to effect change by infiltration of every lever of power;political,legal,academic,monetary,etc….
    these groups are in themselves an example of “groupthink”. Some think these conspiracies, but they are at least elements of concerted effort to bring about change. and in a democratic republic, as we are,the population should pay attention to the associations of those who hold office…. after all, you wouldn’t let an associate of the al capone school of ethics, be the bearer of your wallet… would you?

    1. rob

      also as far as history of the court is concerned, it was the court who of some @200 cases concerning the 14th amendment, really allowed the beginning of making corporations people…maybe fifteen concerned black people, the vast majority of those deemed to have standing and gain favor of supreme court precedent were 19th century corporations…..which is a pretty big part of the reason things are today as they are.that is when the rich began to use corporations as their stand in in controlling the country.

    2. Aquifer

      I have to agree – methinks the Justices are a checkered bag, to say the least – i took a course in Con Law where the subject, of course, were SC cases and frankly ISTM that not a few of the decisions were a bunch of baloney – and rather absurd baloney, at that – and it is not as if they were over my head or too finessed for us “the lower order” of folk – they were just BS and the reason I feel a bit secure in voicing this opinion is because, not infrequently, the dissenting opinions of the Court said the same – in so many words …

  17. Still ashamed

    Am I the only person who remembers when the venerable American Bar Association reviewed judicial nominees and rated them on, inter alia, “judicial temperament”?

    They had to stop their critiques because Richard Nixon nominated a number people who were rated as unqualified by the organization; my recollection is that the practice did not die out until Reagan really tampered with the judicial with the judicial system. Like the rest of the postwar liberal establishment, the ABA graciously stepped aside and let the radical right bludgeon their way to power.

    Now that the judiciary is regarded as a patronage system for conservative bagmen and others who carried water for Republican administrations and couldn’t get private sector jobs (like those Bush adminstration torture lawyers), we are reaping the results.

    If it weren’t so powerful and cruel, the current supreme court could pass for a high school senate, without adult supervision.

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