Tuesday, 12 May 2009

Obama's Big Decision

America waits in suspense as David Souter announced his retirement from the Supreme Court. The importance of this cannot be emphasised enough. The Supreme Court has the power to interpret the constitution and as the final court of appeal; it's decision remains final.

Despite this power, the system of checks and balances which operates in the US means that it is up to the president to nominate members to the Supreme Court when there is a death or retirement etc. Thus the decision lies in the hands of new president Barack Obama to replace Souter. This is a sensitive decision, not least because judges are appointed for life, but also because of the scrutiny placed on the decision. Take the proposal put forward in 1987 to have Robert Bork appointed which was resoundingly rejected by the Senate. Meanwhile the appointment of Clarence Thomas was only passed with a small majority in 1991 following allegations of sexual harassment at work. This problem has even been parodied in 'Supreme Courtship' by Christopher Buckley.

In theory Obama shouldn't have the same problem, or at least to not the same extent. The strong Democrat majority in both houses and general popular support for the government means Obama's choice should get in. Nevertheless, the media will have a field day scrutinising the new judge. It is therefore perhaps of no surprise that it will most likely be October before he (or she) takes their seat.

It is my opinion that Obama needs to see this as more of an opportunity than a threat. With gay marriage being such a prevalent issue in American news at the moment, this could be the chance to enforce the liberal wing of the Supreme Court. In the past this has been headed by Ruth Bader Ginsburg but has often lost out to the more conservative wing.

The liberal wing has gained some minor victories in recent years and surprisingly it was Souter who took the lead part in some of these cases as in Lee v. Weisman hyperlinked above. This was a surprise to many as it was expected that Souter was a staunch conservative when nominated by George Bush Snr. Obama has the chance to strengthen the liberal wing but must make sure he doesn't get the opposite of Souter, i.e. a conservative with a liberal fa├žade.