Robert Stein 1924-2014

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Thursday, May 21, 2009

Obama v. Roberts, Round One

As the President begins one-on-one interviews with replacements for David Souter, his eventual choice will be only the start of a four- or eight-year struggle for the soul of the Supreme Court in the 21st century.

The lines are clearly drawn. In voting against the confirmation of John Roberts, then-Sen. Barack Obama acknowledged the Chief Justice's intellect and scholarship but questioned "what is in the judge’s heart. It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

In his tenure, Roberts has justified Obama's doubts. As Jeffrey Toobin observes in the New Yorker, "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...Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

President Obama's choice now will not alter the philosophical makeup of the Court but may go some distance in shifting its tone. If the rumored list of finalists is right, the new Justice is likely to share Souter's opinions but express them with more passion.

Judging from the President's track record so far, his pick will be confirmable but not bland. Gender and ethnicity will be in play but not determinative.

The actuarial tables suggest that Obama eventually will have his chance to alter the balance of the Court away from the Bush mindset in his own direction. Next week's decision will be a preliminary skirmish with the main battles yet to come.

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