Why are Supreme Court nominations important?

Just look at the Bush vs Gore (2000) decision or the murder of Dr George Tiller last weekend. The Supreme Court has carved out a very significant role (not given to it explicitly in the constitution of 1787), and decides many (but by no means all) political questions in the US – the constitutionality of abortion restrictions, the death penalty, affirmative action and presidential privilege to name just a few. Nominating a middle aged judge to the Court (with no retirement age) therefore provides presidents the potential to indirectly shape policy beyond their term in the White House and even beyond the grave. Nominations must also however be seen as a hurdle over which a president must stride. Part of the importance of this nomination stems from the delicate point of his presidency that Barack Obama finds himself at. A failed nomination would affect his personal prestige and therefore his chances of passing healthcare reforms and bank regulatory changes.

What does the nomination of Sotomayor mean for diversity?

This is the tricky issue of whether this is the first nomination of a Latino to the Supreme Court. Republican talking-heads have been trying to put a dampener on the nomination by pointing out that Benjamin Cardozo (a clue is in the name) has a good claim to being the first Latino Supreme Court Justice. Appointed in 1932 by Herbert Hoover, Cardozo had Portuguese grandparents. In any case if Sotomayor is nominated it will mean that the Court has no less than six Catholic Justices.

This nomination appears to be a handy way to consolidate Latino votes for the Democrats, in states like Florida, Colorado and New Mexico which swung to the Democrats in the 2008 Presidential Election, or Nevada where Senate Majority Leader Harry Reid looks to be in trouble for 2010. However It is worth remembering that Stateside Puerto Ricans (Puerto Rico is part of the US), of which Sotomayor is one, are concentrated on the east coast.

What has been Sonia Sotomayor’s track record as a judge?

Her most famous case to date involved issuing the preliminary injunction to break the 1994 Major League Baseball Strike. In doing so Sotomayor came down on the side of players (and fans) over owners winning instant, if short lived, public recognition. More recently she decided in Ricci vs DeStefano (2008) on the very sensitive issue of affirmative action. The ruling in DeStefano went against a white fire-fighter who claimed that he had been passed up for promotion on grounds of race. The Second Circuit Court of Appeals (which, if successfully confirmed, Sotomayor is leaving) ruled that the fire department was in fact fulfilling its obligations under the 1964 Civil Rights Act. The Supreme Court has now issued a writ of certiorari, meaning that it will hear Ricci, although Sotomayor would have to recuse herself if her nomination is successful.

On the all important issue of state abortion restrictions (deemed unconstitutional in Roe vs Wade (1973), a decision which has been slowly rolled back) It looks as if Sotomayor has little form. Her decision in Center for Reproductive Law and Policy v. Bush (2002) concerns a different constitutional principle.

Will she be confirmed by the Senate?

Recent nomination hearings have gone smoothly once it has been established that the candidate is at least qualified for the position of Supreme Court Justice (see Bush 43’s failure to get Harriet Miers confirmed). Sotomayor’s biggest remaining danger is a filibuster from the Republican minority in the Senate (still 59-40 to the Democrats until the Minnesota senatorial election is settled). Jeff Sessions, Sen. (AL), the ranking Republican on the Senate Judiciary committee, has indicated that there will not be this kind of filibuster. If one were to take place it would only publicise further Obama’s support for a Latino nominee.

How much would Justice Sotomayor affect the Court’s decisions?

The first question to ask in this situation is who is she nominated to replace? She is replacing David Souter who has been a reliable liberal vote. In this light Bush 43’s last nomination — Samuel Alito to Replace Sandra Day O’Connor — seems much more important. Supreme Court justices also have a habit of going native once appointed. Not least the retiring Souter, who conservatives consider to be Bush 41’s worst mistake, after he turned out to be a liberal stalwart. Most famous is the case of Earl Warren who was a Republican governor of California appointed to the court by Dwight Eisenhower, and who went on to orchestrate, as Chief Justice, the most liberal period of decision making in the court’s history. Only Sonia Sotomayor knows how she will play things.

The U.S. has finally done something. After decades of dereliction, the U.S. federal government is working on a bill to address climate change. And while we all may breathe a sigh of relief that government officials are no longer taking black pens to climate reports, silencing scientists, and standing by Senators who declare, as James Inhofe of Oklahoma did in 2003, that global warming is “the greatest hoax ever perpetrated on the American people,” it remains to be seen whether the American Clean Energy and Security Act can make up for lost time. Proponents of the bill, which has yet to be approved by Congress, argue that the environmental community should not let the perfect become the enemy of the good. But at this stage in the fight against global warming, is “good” good enough? 

The American Clean Energy and Security Act, which was approved by the House Energy and Commerce Committee last month, certainly has a lot of good in it. The centerpiece of the legislation is a cap-and-trade program, similar to the one already in action in Europe, designed to curb the emission of greenhouse gases. The bill also boosts efficiency standards and mandates increases in the use of renewable energy. Most significantly, it aims for an 83 percent reduction in the emission of heat-trapping gasses by 2050 below 2005 levels.  

Yet the Act has also come under heavy critique from environmental groups such as Greenpeace, who say it represents “the triumph of industry influence over public interest.” Environmentalists complain that the pollution permits central to the cap-and-trade program will be mostly given away, rather than auctioned off to polluting industry. They also point out that emissions cuts under the Act fail to meet the level of reduction identified by the International Panel on Climate Change as necessary to avert the most damaging effects of climate change. 

On the campaign trail, President Obama said that permits should be auctioned and that emissions reductions should be guided by science. Yet even Obama has been forced to adopt pragmatism in the face of political realities – despite incessant flirtation, idealism and American politics have never made a very good couple. This was made abundantly clear in the struggle to push the Clean Energy and Security Act through the House Energy and Commerce Committee. Predictably, all Republicans on the Committee opposed the bill, but its sponsors also had to fight to get Democrats on board. When Waxman and Markey first proposed the legislation, a third of the “Brown Dog” Democrats on the Committee (who represent coal-manufacturing states) dug in their heels. In the end, even substantial compromise could not bring all the Democrats around: Representatives from Louisiana, Arkansas, Utah, and Georgia still said “No.”  

The compromises hammered out by the Commerce Committee are just the beginning. Now the Act must survive vetting by as many as eleven other Committees before moving to a vote on the House floor. This legislative gauntlet includes the Agriculture Committee, which will seek concessions for the environmentally dubious ethanol industry, and the Natural Resource Committee, whose Democratic chairman intends to secure expanded domestic oil production.  

The challenges faced by the Clean Energy and Security Act, even in an age of Democratic ascendance, beg the question: Is the problem of climate change simply too much for the American political system? How can the U.S. become an effective international player when its legislators must think locally while acting globally?  

It cannot help that, in the midst of economic turmoil, climate change isn’t exactly on the minds of Americans. A poll conducted earlier this year found that global warming ranked dead last in a list of twenty voter priorities. (Ironically, the list included stemming moral decline and curtailing the influence of lobbyists.) As one strategist pointed out, “When you say ‘global warming,’ a certain group of Americans think that’s a code word for progressive liberals, gay marriage and other such issues.” 

Obama’s international climate team is painfully aware of the degree to which U.S. leadership abroad is constrained by political considerations at home. Despite his declaration at climate talks last week that “America is now once again strongly committed to developing a global response to climate change,” Special Envoy for Climate Change Todd Stern also noted that securing effective domestic legislation would be a “very difficult exercise.” 

President Obama has not taken a leading role in pushing the Clean Energy and Security Act, preferring instead to work quietly through back channels. Ever a savvy political operator, Obama probably has in mind the political misfortunes of other politicians who have adopted climate change as a signal issue.  

Yet however stark the realities of the American political landscape, there are other realities to consider. Many scientists have stated that the upcoming climate negotiations in Copenhagen in December, where countries will craft a follow-up treaty to the Kyoto Protocol, is the last best chance to curtail the most serious impacts of climate change. The situation is urgent: a recent report by the International Organization for Migration estimated that over the next fifty years, as many as 200 million people could become climate refugees.  

Humans (and Americans in particular) seem hard-wired to fail when it comes to global warming. Yet recent research has shown that feelings of community can have a profound effect on human decision-making: When we think collectively, we are more likely to come to conclusions that benefit everyone. In the United States, this would mean retiring the individualist ethic that has sat at the core of our national identity for so long. President Obama’s task, then, is to help Americans realize that, in light of their commitment to morality, “me” must be “we.” Perhaps global warming, more than any other issue, will test whether Barack Obama is the transformative leader we’ve all been hoping for.