(Guest post by Cory Allen Cox.)
When Justice David Souter officially announced last week his retirement from the Supreme Court of the United States (SCOTUS), speculation immediately began swirling about whom President Obama would name as a replacement.
In reality, speculation about Obama’s SCOTUS picks began soon after his election in November. But Souter’s departure, slated for the beginning of the court’s summer recess, brought home the reality of the judicial legacy that the president shall leave behind.
Undoubtedly Obama has a liberal view of the courts and how the constitution should be interpreted. The president has promised to appoint “somebody who’s got the heart, 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.”
One can guess that Obama’s pick will not win accolades from The Federalist Society, the conservative legal group of which I am a member. Based upon the appointment of Attorney General Eric Holder and others, Obama’s nominee will likely hold views and opinions that are vastly different than those of the majority of Arkansans.
One senator to watch in the coming weeks will be Democratic Sen. Blanche Lincoln of Arkansas, who’s up for re-election in 2010. Where will she land on Obama’s first SCOTUS nominee?
The importance of any Supreme Court justice is, of course, undeniably important. The SCOTUS may be tied to tradition like no other branch of government, but the court’s decisions can act as catalyst for societal changes like no other. Same-sex marriage, the words “under God” in the Pledge of Allegiance, a right to human cloning—these controversial issues will be before the court in the near future. Obama’s likely three SCOTUS appointees will have a great impact on what our country will look like during the next two decades.
What makes this interesting for Arkansans is that with Sen. Arlen Specter’s defection to the Democratic Party and the probable seating of Al Franken in the Senate, the Democrats will have 60 members and 60 votes to override a potential filibuster of any of Obama’s judicial nominees. If Franken is seated before this SCOTUS nomination, the only thing that stands between Obama and a blank check will be the moderate Democrats in the Senate.
Lincoln, facing a 2010 election in a state that overwhelmingly voted for John McCain (leading analysts to designate Arkansas as “the reddest blue state”) may end up being the vote that overrides a filibuster to confirm a justice who will likely be difficult for her constituents to accept.
Lincoln will be placed in the unenviable position of either voting against her party and her president or against the majority of the people she represents. It will be a vote she will not be able to hide from. No matter how she votes, she will make enemies.
If she votes to override a filibuster, she gives ammunition to any potential Republican challenger. If she does not, she will face a potential challenge from her own party’s left wing.
Depending on whom you talk to, Lincoln is either reassured election, come what may, or she has some serious problems. There will be no real challenge to Lincoln from the Democrats. There will be more danger for her from a Republican than from any primary opponent.
A year and seven months is an eternity in politics. Lincoln knows this. She also knows that she does not want to be become known as “Blank Check Blanche” for giving blanket approval to all of Obama’s priorities.
If events happen just right, this could be the most important vote of Lincoln’s career.
Cory Allen Cox is an attorney practicing law in Little Rock. He was previously legal counsel for Gov. Mike Huckabee and director of the Criminal Investigation Division of the Arkansas Insurance Department. He was choosen as one of Arkansas Business’ Forty Under Forty in 2008. His legal practice focuses on insurance defense, government regulation and commercial transactions.