A Page from the Bush Playbook

Justice Ruth Bader Ginsburg was hospitalized this week reportedly in response to treatment for anemia. She has pancreatic cancer so one must believe that the anemia is associated with the disease or the treatments she is taking for the disease. As I have written before in this blog, I am very fond of Justice Ginsberg and although she says that she hopes to stay on the court for at least another 5 years, she may need or want to retire at the end of this term. Thus it is likely that President Obama will have to appoint another justice within the next year.

Obama is developing a reputation as a middle of the roader. See e.g. the Washington Post article by Rajiv Chandrasekaran. Obama's last choice for Supreme Court supports that reputation, as far as I can tell. However, he must break with this proclivity and appoint someone like Ginsburg to the next open seat. Obama needs to be more like W and appoint people with more definite values (this time left leaning) just as W appointed two (!) highly conservative justices during his administration.

Otherwise we will continue to suffer the fallout of the Bush administration. A May 2009 article in the New Yorker by Jeffrey Toobin demonstrates why. As Toobin wrote:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

What that means for us is the potential loss of civil rights to which we have become accustomed. A Roberts dominated court could eliminate the following:

• rights of African- Americans-Roberts already signaled his intentions to cut protections to African- Americans in last term's case involving section 5 of the 1965 Voting Rights Act, which the Court ultimately upheld but narrowed such that local governments now have the option not to obtain Justice Department approval before making changes to their election laws or rules. As Toobin points out, these rules include "from the location of polling places to the boundaries of congressional districts." Roberts also supported the overturning of the Seattle School District integration plan in 2007 and found that the rights of white New haven firefighters were violated under Title VII of the civil rights act.


• abortion- six of the current nine justices are Catholic, in comparison to under 25% of the American population. Roberts already supported the upholding of the federal Partial Birth Abortion Ban Act in 2007.


• women's rights in employment- Roberts supported the decision in Ledbetter v. Goodyear which imposed virtually impossible standards on those suing for discrimination. In that case the woman plaintiff was seeking equal pay for equal work.


• rights to pursue torturers- Roberts dissented in Boumediene v. Bush, which upheld rights of those held in Guantanamo to a "prompt hearing" on challenges to detention. If the AG ever decides to pursue those who justified and allowed torture in the Bush Adminstration, we can safely predict where a Roberts led court would come out.

So, if Obama must name another justice in the coming year or so, I hope he recognizes what is at stake and takes pains to find someone who is ideologically like Ginsburg. Otherwise Bush's legacy of conservatism will rear its ugly head for a very long time in the Supreme Court.