In 2005, then Illinois Senator Barack Obama was unequivocal. He said he wanted a Supreme Court justice with a heart. By that he meant someone who was not just a top legal scholar and rendered flawless legal opinions rulings, but who had real compassion for the needs and suffering of people. In a fiery senate floor speech on September 22 that year Obama hammered Bush's high court pick John G. Roberts as being dismissive and insensitive to race and gender discrimination.
Four months later Obama went on the attack again. He lambasted Bush's next high court pick Samuel A. Alito as a shill for the powerful and uncaring about the rights and protections of the powerless, poor and minorities. He slammed Alito for backing prosecutors over the rights of defendants. He felt so strongly that Alito was not the right sort for the court that he joined in a futile and short lived filibuster against him.
He didn't stop there. At a presidential campaign appearance in 2007 he said: "We need somebody who's got the heart to recognize, the empathy to recognize what it's like to be a young teenage mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old." There was that reference to heart again.
Obama wanted and expected a Supreme Court justice to be a guardian of the people's interests, to be cut squarely in the proud tradition of Hugo Black, Thurgood Marshall, Earl Warren, and yes, on his best days John Paul Stevens. Obama saw absolutely nothing wrong with a justice being a legal scholar, judicial expert and an activist. He firmly rejected the GOP's and conservative judicial watchdog group's phony, politically self-serving strict constitutional constructionist litmus test for judges. Court ultra conservatives Clarence Thomas, Antonin Scalia, and William Rehnquist were unabashed judicial activists and ideologues, and conservatives heap praise on them, and abuse on any jurist that doesn't agree with them.
Four years later and a second Supreme Court judge pick in the waiting, nothing has changed. And since it hasn't, Obama has the enviable chance of a president's lifetime to do what he proclaimed in his attacks on and senate votes against confirming Alito and Roberts. That's the chance to follow his heart and pick the kind of judge he made clear that both Bush picks weren't and pick a judge who will protect the rights of the powerless, minorities, and women. He has absolutely nothing to lose. GOP senators, Tea Party leaders, Rush Limbaugh, the pack of shrill rightwing radio talk jocks, Fox News Network, and the hodge-podge of conservative judicial watchdog groups will stick to their hit plan on him no matter who he picks to replace Stevens.
His pick will be too liberal, too activist, too pro victim's rights, affirmative action, civil liberties, and for the more rabid, a closet identity politics baiter. The GOP tactics in pounding Obama's pick is unchanged. They will scream, shout, bully, cow, and badger the court pick on the same tired hit points. The goal is unchanged and that's to insure that she or he toes the conservative legal constructionist line not solely before the Senate Judiciary panel, but more importantly on the bench.
A slip or a too confrontational pose by the pick during the hearings will instantly be pounced on and held up by conservative attackers as proof that he or she doesn't have the right stuff to be a fair and impartial judge.
He or she will be under tremendous pressure to assure senators that they'll play it strictly by the moderate and conservative playbook on any and all decisions that even remotely touch on race and class issues on the bench, as well as abortion and other issues that are traditional conservative causes.
None of the attack points about Obama's pick as too liberal, activist, and therefore judicially suspect will be true. He or she will have played it close to the vest in their decisions, rulings and opinions in their stints on the various appellate courts; so close that not one of the picks will likely raise a whimper of criticism or protest from any impartial legal or judicial organization.
Obama's pick won't alter the still suffocating conservative tilt on the court. But a stand tough progressive can go toe to toe with the very judges who Obama felt did not embody the true spirit of what the Supreme Court should be about. That's empathy and sympathy for the downtrodden, poor and minorities. A solid progressive pick would be a model for the type of law and justice the court in time can and should represent. Best of all, it would show that when he had the chance Obama dared put a judge on the high court with the heart that he wants.
Earl Ofari Hutchinson is an author and political analyst. He is the author of How Obama Governed.