Progressives are gratified that the U.S. Supreme Court issued a pair of eminently reasonable decisions recently upholding the right of same-sex couples to marry and dismissing the latest absurd challenge to the Affordable Care Act. Indeed, there have been moments in recent days in which (dare one use the word?) optimism has crept into the hearts of many caring and thinking people as they’ve surveyed the national political and policy landscapes.
As wonderful and hope-inspiring as these decisions are, however, we would all do well to remind ourselves that the forces of reaction are anything but decisively vanquished. After all, both the marriage and redistricting decisions were narrow 5-4 squeakers and while Chief Justice Roberts did, to his credit, author the 6-3 opinion upholding Affordable Care Act subsidies, the vitriol he spewed in criticizing the marriage ruling was quite enough to remind us of what kind of man it is that presides over the Court.
That fact was brought home in spades as the Court concluded its term with two disheartening 5-4 opinions upholding the right of the state of Oklahoma to, in effect, torture convicted murderers to death and striking down a modest attempt by the Environmental Protection Agency to save human lives from toxic air pollution because the agency allegedly failed to give adequate weight to the costs that doing so would impose on corporate polluters.
As they have so often in recent years, many basic American rights and political fundamentals remain, for all practical purposes, in the hands of Justice Anthony Kennedy — an elderly, one-time Ronald Reagan crony who, in his 28th year on the Court, occasionally breaks with his fellow conservatives to side with its moderate-to-liberal wing.
What’s more, the prospect for significant improvement in the Court’s makeup seems hard to envision any time soon. Though Kennedy (who will be 79 next month), Ginsburg (82), Antonin Scalia (79) and Stephen Breyer (77 in August) are all getting up there in age, filling any of their slots with a quality replacement would not be easy.
Not only is the President soon to be a lame duck, but Republican leaders in the U.S. Senate have been setting new standards for obstructionism when it comes to Obama nominees over the last six years. In the history of the United States, 168 federal courts nominees have been filibustered. Of that number, amazingly, 82 have occurred under President Obama.
A classic example, sadly, can be found right here in North Carolina where Sen. Richard Burr has successfully pulled off a solo, unexplained filibuster of the President’s efforts to fill the oldest federal court vacancy in the country. It’s gotten so out of hand at this point that the White House appears — for all intents and purposes — to have simply given up even trying to fill the vacancy in the Federal District Court for the state’s Eastern District despite the fact that the people of the district are now going on a decade without their full complement of judges.
The bottom line going forward, of course, is that this has got to change. If the nation is to avoid a judicial blockade of the kind of policies that figure to be in the offing in the coming decades given the nation’s increasingly diverse and open-minded population, progressives must band together and speak up much more passionately and regularly about who serves on the federal courts (and the state courts too).
Moreover, this means a lot more than simply riling up the troops every five or six years for a Supreme Court nomination fight. Sure, the battle over who serves on the U.S. Supreme Court is and will continue to be critical and will no doubt be a key issue in the 2016 presidential election. As the recent decisions confirm, many of our most important rights hang by a thread. That said, progressives must begin to make the composition of the judiciary at every level a core priority in every federal election.
After all, the nine justices of the Supreme Court decide a handful of cases each year while the 900 judges who comprise the rest of the federal judiciary decide thousands.
Let’s hope the recent narrow decisions serve as a wake-up call to all progressives to become regularly engaged in helping to determine who those justices and judges are at all levels. : :
— Rob Schofield is the director of research and policy development at N.C. Policy Watch (ncpolicywatch.com).