Ninth Man Out

The big news that Supreme Court Justice David Souter will be stepping down from the court puts a big item on the summer news budget.

How should the press cover a Supreme Court appointment? In the midst of the presidential campaign, CJR’s Zachary Roth (now of TPM) suggested that the press take pains to point out the likely practical effects of either candidate’s potential nominees:

…[T]here’s a general sense that issues of jurisprudence aren’t fully “political” in the way that issues of, say, healthcare or tax policy are. As a result, it’s seen as not quite fair for the public debate to get too specific about how a candidate’s appointees might be expected to rule on controversial issues. We see this most clearly during Senate confirmation hearings, in which nominees are generally given a pass by the press about their exact views on controversial political topics and legal cases…

This approach is out of sync with the reality of modern politics. George W. Bush came to office with the goal of using the legal system to achieve certain specific outcomes favored by his administration or its supporters—expanding presidential power, and strengthening the legal standing of corporations, among others. He was largely successful in that effort, and there’s no reason to think that this year’s candidates won’t take the same approach. The legal system is now another arena in which to achieve political and policy goals—if indeed it was ever anything else.

Given this reality, the press should accept that judicial appointments are just as political as any other issue in the campaign, and should pull no punches in spelling out the real-world consequences of the likely rulings to be made by the candidates’ appointees.

Of course now we know who’s doing the picking. And once there’s a name sent on from the White House, thumbing through the record will be a simple matter.

Still, it’s good advice. Whomever Obama nominates, we’re likely to hear some version of John Roberts’s I’m-just-an-umpire analogy. If we do, journalists and commentators should call foul.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.