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Now, Obama Can Pick a Justice with a Heart

New America Media, Commentary, Earl Ofari Hutchinson Posted: Apr 13, 2010

In 2005, then-Illinois Sen. 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 who had rendered flawless legal opinions, but one who had real compassion for the needs and suffering of people. In a fiery Senate floor speech on Sept. 22 that year, Obama hammered Bushs 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 Bushs next high-court pick, Samuel A. Alito, as a shill for the powerful and as 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 didnt 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 peoples 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 GOPs phony, 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 doesnt agree with them.

Sonia Sotomayor, his first justice nomination, was not Obama's "heart" pick. She was a moderate, centrist, pragmatic and thus fairly consensus pick for the court. It had to be that way. She was his first pick, and thus his first court test. Given Obama's still overriding concern with getting at least some GOP support for her with as little rancor as possible, Sotomayor was a relatively safe choice.

Now, with a second Supreme Court judge pick approaching, nothing has changed. And since it hasnt, Obama has the chance of a presidents lifetime to do what he proclaimed in his Senate votes against Alito and Roberts. Thats the chance to follow his heart and pick the kind of judge he made clear that both Bush picks werent, and to 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 hodgepodge 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 Obamas pick is unchanged. They will scream, shout, bully and badger the court pick on the same tired hit points. The goal is unchanged and thats to insure that she or he toes the conservative 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 theyll 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 Obamas pick as too liberal, activist, and therefore judicially suspect will be true. The nominee will have played it close to the vest in his or her decisions, rulings and opinions in 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.

Obamas pick wont 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. Thats 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 to 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.

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