Obama Needs to Do More Than Swap Liberal Justices

By Matthew Rothschild, The Progressive. Posted May 29, 2009.

While everyone’s talking about how the nomination of Sonia Sotomayor may affect the Supreme Court, we need to keep our eye on the current court — and on Obama’s arguments in there.

For on the same day that Obama nominated Sotomayor, the Court came down with a horrendous decision on a defendant’s Sixth Amendment right to counsel.

By a 5 to 4 vote, the Court said that a defendant who has already been appointed counsel may be interrogated by police without that counsel present.

Amazingly, Obama’s Justice Department argued in favor of the decision that Justice Scalia handed down. It said the 23-year-old precedent, Michigan v. Jackson, "serves no purpose."

Distressed, Justice John Paul Stevens, who wrote the Michigan decision, took the unusual move of reading his heated dissent aloud from the bench.

"The police interrogation in this case clearly violated petitioner’s Sixth Amendment right to counsel," he said, adding that the court, by overturning a previous Supreme Court ruling, engaged in a "gross undervaluation" of precedent.

Stevens made the unassailable point that "if a defendant is entitled to protection from police-initiated interrogation under the Sixth Amendment when he merely requests a lawyer, he is even more obviously entitled to such protection when he has secured a lawyer."

Sotomayor won’t shift the balance on such issues, since David Souter, whom she’s replacing, was also in the minority here.

But Obama needs to do more than just swap one liberal justice for another. He needs to make sure that his Justice Department goes into the Supreme Court to uphold the Bill of Rights, not undermine it.

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Matthew Rothschild is the editor of The Progressive.

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