We Need Elizabeth Warren on the Supreme Court

Jul 16, 2014 by

By Bill Blum  TRUTHDIG

AP/Charles Dharapak

The Supreme Court is in summer recess, but the political handwringing over the high tribunal’s future continues unabated. The big worry in left-of-center legal circles, and it’s a real one, is that sooner rather than later and whether anyone likes it or not, the court’s liberal standard-bearer—the frail 81-year-old Ruth Bader Ginsburg, a survivor of both colon and pancreatic cancer—will have to step down, and no one of equal ability and courage will be appointed to take her place.

As I have reported previously in this column, Ginsburg anxiety syndrome reached its apogee back in March in a testy debate among liberal commentators over the pros and cons of the justice’s possible retirement.

At one end of the debate spectrum, Erwin Chemerinsky, dean of the School of Law at UC Irvine, argued that Ginsburg should leave the bench at the conclusion of the present term in order to give President Obama time to name her replacement before the Republicans retake the Senate in November. Pushing the opposite view was Slate writer Dahlia Lithwick, who argued that despite her health challenges, Ginsburg remained strong and, citing Slate colleague Emily Bazelon, overtures for her to exit smacked of sexism.

Now that the court’s current term is complete, the debate has resurfaced with renewed pleas for Ginsburg’s immediate departure and fresh expressions of distress that it’s already too late in the election cycle for Obama to propose a worthy successor.

Predictably, the end result of all the deliberation is a stalemate of ideas on how best to move forward. While the court’s all-male, all-Catholic conservative majority has united to transform the nation’s legal architecture on issues ranging from campaign finance and voting rights to the Affordable Care Act’s contraception mandate, the legal left appears indecisive, divided, defensive and defeatist.

 

But for those wallowing in despair at what fellow Truthdig columnist Chris Hedges aptly warns is our fast-approaching “post-constitutional era,” I have two simple words of encouragement: Elizabeth Warren.

Yes, there are many progressives who would much rather see Warren run for president in 2016 than don a black robe to take on Chief Justice John Roberts and his Republican brethren. But Warren isn’t running for president, and even if she were to change her mind, she stands little chance of mounting a successful challenge to Hillary Clinton for the Democratic nomination. She also would be vulnerable, perhaps even more than was first-term candidate Obama, to charges of inexperience in elected office.

By contrast, Warren is unquestionably qualified to serve on the Supreme Court. Even more, she is uniquely positioned to revive the flagging spirits of the left, and help restore the country’s confidence in the tribunal, which has sunk to record lows as the court has moved openly and often cravenly to the right.

Before Warren’s election to the Senate in 2012, she was a Harvard Law School professor and a respected expert in bankruptcy and consumer protection law. She served on congressional panels dealing with bankruptcy reform and oversight of the bank-bailout Troubled Asset Relief Program under the Clinton and Obama administrations, respectively. She also was instrumental in establishing the Consumer Financial Protection Bureau.

But above all, Warren is and has been for many years an outspoken defender of the vanishing American middle class, and a vocal critic of the current court’s capitulation to corporate interests. In March, the day after the court heard oral arguments in the Hobby Lobby case, Warren posted a foreboding column on her official Senate blog titled, “We don’t run this country for corporations.”

Anticipating the worst in the case, Warren referred to an exhaustive study written for the University of Minnesota Law Review in 2013 by three legal scholars, including conservative federal appeals Judge Richard Posner, who examined almost 20,000 Supreme Court cases from the last 65 years and found that the two most pro-business justices over the entire time span were Roberts and Samuel Alito. The remaining three conservatives on the present panel—Antonin Scalia, Anthony Kennedy and Clarence Thomas—ranked in the top 10.

Invoking an additional barometer of the court’s corporate takeover, Warren also noted that the success rate of the U.S. Chamber of Commerce in cases in which it had taken a formal position had skyrocketed from 43 percent during the mid-1980s to an astounding 70 percent in the Roberts era. “Follow these pro-corporate trends to their logical conclusion,” she warned, “and pretty soon you’ll have a Supreme Court that is a wholly owned subsidiary of big business.”

Sounding precisely like the kind of jurist needed to turn the tide on the nation’s most powerful legal body, Warren continued, “Republicans may prefer a rigged court that gives their corporate friends and their armies of lawyers and lobbyists every advantage. But that’s not the job of judges. Judges don’t sit on the bench to hand out favors to their political friends.

AP Photo/Charles Dharapak

“On days like today, it matters who is sitting on the Supreme Court. It matters that we have a President who appoints fair and impartial judges to our courts, and it matters that we have a Senate who approves them.

“We’re in this fight because we believe that we don’t run this country for corporations—we run it for people.”

To those who might object to the appointment of Warren on the grounds that she lacks judicial experience or that Senate Republicans would fight like dogs to block confirmation, I offer two simple rejoinders:

 

 


The first is that judicial experience has never been a bar to Supreme Court confirmation. Over 36 percent of justices seated on the court since the country’s founding had no prior judicial tenure, including Chief Justices John Marshall, Earl Warren and William Rehnquist. Those without prior judgeships also include the legendary populist reformer and author Louis Brandeis, with whom Warren has been compared, as well as Obama’s most recent appointee, ElenaKagan, who was selected to succeed Justice John Paul Stevens. 

In 2010, before Kagan’s nomination, Warren was rumored to be on the short list of names Obama considered to replace Stevens. Although Warren hasn’t been mentioned in the judicial conversation since then, it’s clear that Democratic insiders realize she has the talent and fortitude for the job.

The second rejoinder is even simpler and applies not only to Obama but to the next Democratic president, whomever that may be: When it comes to the Supreme Court, liberals and progressives can’t afford to be timid in the face of Republican opposition. No matter how much we dress up the language of legal discourse with constitutional jargon and abstractions, the Supreme Court remains a political institution in which justices with different ideological predispositions battle for dominance.

The right wing learned this simple truth decades ago when it set out to alter the composition of the federal courts and reshape the direction of constitutional law with the creation of think tanks and clearinghouses like the Federalist Society. Undeterred by liberal objections, the right rallied behind the nominations of Thomas, Roberts and Alito.

There is no good reason the left can’t do the same for a progressive stalwart like Warren. She shouldn’t just be added back to the short list of potential replacements for Ginsburg or anyone else who retires; her name belongs at the top.

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