Legitimate concern regarding an Obama Supreme Court nomination

The Supreme Court is one of the most powerful institutions in the United States and the president’s authority to nominate justices or lifetime appointments offers him one of his most enduring legacies. The recent death of Associate Justice Antonin Scalia has left a vacancy on the Court that President Obama is keen to fill and that many of his political detractors are attempting to prevent his doing. While to some, it may seem inappropriate to block his appointee, there may be a valid reason for concern.

Full disclosure – I am neither a lawyer nor the son of a lawyer and have no formal legal training. I was privileged to have two cases argued in front of the US Supreme Court [Zivotofsky v. Clinton, 566 U.S. ___ (2012) and Zivotofsky v. Kerry, 576 U.S. ___ (2015)], brilliantly handled by the father- daughter legal team of Nathan and Alyza Lewin [http://www.lewinlewin.com/ ]. During that process, I read a great deal about the Court. It intrigued me how there was a constant buzz that the silent Justice Clarence Thomas was viewed by the media as a diligent disciple of Scalia who followed his mentor’s lead in deciding how to vote. My first hint that such was not the case was when Thomas voted with the majority against us in our second case, while Scalia penned a scathing dissenting opinion. To be sure, Thomas, like everyone else, has great respect for Scalia, and in his concurring opinion he devoted a great deal of space responding explicitly to Scalia’s ideas.

Those accusations regarding Thomas got me thinking, and it turns out that more important than the anecdotal note is the overall statistics. It is not that Scalia and Thomas do not agree often; they do. Rather, it is about the fact that Obama’s two previous appointees are like two peas in a pod. In most years they have been in very high agreement. Obama nominated Sonia Sotomayor in 2009 and Elena Kagan in 2010. In the October 2010 term, the first term Obama’s nominees were together, GW Bush’s appointees, Roberts and Alito, led in agreement, voting together in 96.2% of the 80 cases. But right behind them were Sotomayor and Kagan at 94.1%. That term, Scalia and Thomas voted together a mere 86% of the cases. The trend continued. Sotomayor and Kagan did not always lead in the agreement category, but they are always strongly in agreement. In the last three terms, 2012, 2013, and 2014, they agreed a whopping 95.9%, 91.4%, and 90.5% of the time. President Obama certainly gets credit for finding candidates who vote based on their (and his?) pre-conceived agenda. There is no other way to explain such a voting pattern. After all, the pair of Roberts and Alito was not consistent – last term agreeing only 81.1% of the cases, and Thomas and Scalia last term agreed only 78% of the time. And if one adds the 1993 Clinton appointee, Ruth Bader Ginsburg, to the mix she agreed with Sotomayor and Kagan more than 90% of the time last term.

As a matter of fact, the only pairs that have voted together more than 90% of the time for the last three terms are the pairs of Ginsburg –Sotomayor, Ginsburg-Kagan, and Sotomayor-Kagan. While some people see on the Court a Conservative voting bloc that just lost its ace player, the statistics tell a different story.

President Obama recently declared that his nominee’s “analysis necessarily will be shaped by his or her own perspective, ethics, and judgment.” It seems that is what he strived for in the past, and it seems he has succeeded. But many citizens are not interested in a justice who inserts his/her values rather than the rule of law based on the documents of the founding fathers. Hence the warranted grave concern over permitting Obama this opportunity.

About the Author
Ari Zivotofsky is a professor of neuroscience at Bar Ilan University. Also trained as a rabbi and shochet, he has a masters degree in Jewish history. He has written extensively on topics of Jewish history, culture, and traditions, in particular in his regular column (now running 20 years) in the OU magazine Jewish Action and in Mishpacha magazine.
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