Friday, March 30, 2012

ACA, SCOTUS, and Activist Legitimacy

J. kelly Wright isn't walking through that door,
at least not until activists start taking court
appointments seriously
I agree with Scott Lemieux that, should the Supreme Court overturn the Affordable Care Act (as I think seems likely at this point), the Court as an institution will not suffer a crisis of legitimacy. While the current polling on the Constitutionality of Obamacare is almost certainly a result of the public discourse on the subject, the end result means that a large portion of the electorate will be perfectly fine with a decision that overturns the law. As an institution, the public views the Supreme Court as one of the more trustworthy American institutions, certainly more trustworthy than Congress or even the Presidency, and Gen Y is considerably more deferential to authority figures than the Boomers or Gen X.

What should happen (and, if there is any justice in the world, will happen), whether or not we end up with a nakedly partisan ruling, is that liberal activists will start taking judicial appointments much more seriously. And I don't mean "get more lawyers to join the American Constitution Society" seriously. I mean rank-and-file activists need to start making support for progressive court appointments a sine qua non for political candidates. If courts are going to be a purely political institution, they need to be a purely political institution to both parties, not a political institution for one and a political-technocratic institution for the other.

Over the past three decades, the right has made devotion to the Republican (let's not call it conservative when it comes to court appointments) political agenda a prerequisite for judicial postings. This is not to say that Republican judicial appointees are incompetent partisan hacks; some are, but a great many are competent partisan hacks, well versed in the techniques of using the means of legal sophistry to achieve right-wing policy ends. It's time for Democrats to start doing the same thing. No more appointing mushy moderates to district courts because that's what the home state Senator is a Republican or a mushy moderate Democrat. The President's job will be to appoint the most progressive judges he can find; the job of the Senate Judiciary Committee chair and the Majority will be to round up votes from recalcitrant Western and Southern Democrats. And it will be the job of rank and file political activists to once again emphasize to their elected officials that this is a priority, the way it was a priority in the New Deal Era for labor unions, or in Civil Rights Era to African-Americans. If politics is the slow boring of hard boards, restructuring the courts may be the hardest board out there. It's time to get cracking.


Ashley said...

Fresh perspective, thank you! I completely agree with you. Democrats need to be more strategic about this.


Anonymous said...

I'm not confident that Democrats are willing to engage in the all-out war that this implies. Where Republicans have been successful is nominating their own hacks (competent and otherwise) when in power, blocking Democratic appointments when they're out of power, and then, if Democrats try to block nominees once Republicans return to power, having the chutzpah to yell about the crisis of judicial vacancies that MUST BE FILLED. One the one hand, if Democrats don't adopt Republican tactics, we'll have a judiciary that moves even further to the right. If they do, we wind up at an impasse where neither side can get its nominees confirmed (which means Republicans continue to have a judicial advantage). I don't know what the answer is.


Neil Sinhababu said...

Azelie, I think that if we go down the all-out war route, it might force some systemic changes that provide some way to confirm nominees. I just hope that the Democrats aren't always one step behind the Republicans in escalating.