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Forget "Centrists," We Need Progressives in the Supreme Court -- Right-Wingers Will Fight Whomever Obama Picks

Unless Obama gives up his centrist approach and appoints real progressives, our right-wing court may get even more conservative.

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Obama is a smart guy. He knows that even the most “common-sense/pragmatic” nominee will bring (often-feigned) outrage from conservatives. Rightwing groups are gearing up to raise funds and build their mailing lists by pouncing on whomever he chooses. They’d yell even if he selected 79-year-old recently Republican Arlen Specter.  

After Souter announced his retirement, rightwingers jumped on Obama’s sensible statement that he would look for “that quality of empathy, of understanding and identifying with people’s hopes and struggles.” That’s code, claimed conservatives, for a liberal activist judge. And Obama is looking to replace Souter with a woman, person of color or both.

Rightwing theatrics aside, the reality is that unless Obama restrains his compulsion toward centrist consensus and appoints real progressives to replace not only Souter but Ginsburg and Stevens, our rightwing court may get even more conservative.

George W. Bush appointed mostly rightwing ideologues to the federal courts, and put Alito and Roberts on the Supremes. Republican-appointees and rightists now dominate the federal judiciary. Meanwhile, Bill Clinton prided himself on choosing mostly moderate judges – praised by the same elite pundit chorus that now praises Obama’s “pragmatic” choices.

A tepid replacement for Souter (and Stevens and Ginsburg) would maintain a rightwing status quo on the Supreme Court; as University of Chicago law professor Geoffrey Stone told the Times: “The right side is very bold and very conservative. The liberal side is not bold. They are incrementalists. They don’t set the agenda.” 

But if Obama were to break his habit and replace retiring liberals with a bold progressive or two, Professor Stone argues it would seriously change things: “A really powerful, articulate, moral, passionate voice on the left would really change the dynamic on the Court. It would pull the other justices who are inclined to be sympathetic to that voice in that direction. It would shift the center of the discussion — about what’s the middle.”

With a Democratic-dominated Senate, President Obama is free to make a bold choice.  I’m not holding my breath. 

Especially after seeing this clueless comment from Senate Judiciary chair Pat Leahy, who’s gone over possible Souter replacements with Obama: “I don’t like to see an ideologue of either the right or the left. I don’t think we’re going to have one.”

Jeff Cohen is founder of the media watch group FAIR, former TV pundit, and author of Cable News Confidential: My Misadventures in Corporate Media .

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