It seems pretty obvious to me that if you are upset or outraged with the ruling this week that the individual mandate in the healthcare bill is unconstitutional – a ruling made by a 20 year GOP activist now sitting for life on the federal bench – then you should care a hell of a lot about the fact that President Obama has about 40 judicial nominees who are awaiting confirmation votes by the Senate. These are not controversial figures. Every single one was voted out of the Senate Judiciary Committee, most unanimously or with only token dissent.

What incentive does Minority Leader McConnell have to let these nominations proceed? Well, none, other than the federal bench is rife with vacancies that are now slowing the wheels of justice around the country. Of course, this will quickly be solved once a Republican again sits in the Oval Office.

Here’s my prediction: while some of these nominees will end up getting a vote, many will not. And the ones that do will tend to be gray-haired judges who don’t have much chance of ever getting a Supreme Court nomination. The Senate Republicans are functionally (and strategically) cutting off the ability of Democrats to grow a liberal bench of judges who can be considered for future Supreme Court vacancies. While I don’t think it’s crucial that nominees to the Supreme Court be members of the federal bench, recent precedent has been dominated by judges. And while there were objections to Harriet Miers for many reasons, I’d expect the hue and cry from the right if a Democrat nominated someone who was not currently a judge to be deafening.

Democrats can’t let Republicans to continue to own a full branch of government. The GOP has spent decades cultivating activist judges, training them, employing them, nominating them, and confirming them. Roberts and Alito are prime examples of how the fruits of their labor have paid off: two corporatist, political, activist justices who will sit on the Supreme Court for another thirty to forty years. It’s time for Democrats to do the same thing: cultivate young attorneys, provide them training and academic opportunity, get them onto the federal bench at a young age and let them grow into future Supreme Court justices. Failure to do so means that we can expect every law of progressive bent signed by President Obama to one day be overturned by the Roberts court.  That’s the game the Republicans are playing and if we don’t start playing it too, America will wind up back in the 1800s.

Josh Marshall writes:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

While I would find it hard to agree that only just now are Republican efforts to put conservative activists on the bench paying off, Marshall’s point stands. More importantly, it’s obvious that a political faction can pack the courts with activist judges of a particular ideology over a prolonged period of time. This has been a conservative priority for decades and it’s paid off today. It’s a sad statement that the Democratic coalition has ever prioritized the judiciary as much as conservatives have made it a key part of their theory of change in America.

Elena Kagan was confirmed to the Supreme Court. That’s two women justices nominated and confirmed by President Obama. Kagan is clearly a mystery as far as how she will actually behave on the bench, so hopefully she turns out to be super liberal and forces everyone to marry a gay man, or something.

Jack Balkin and Matt Yglesias are both talking about the merits of having a fixed term for a Supreme Court justice. Balkin suggests 18 years, Yglesias 9-12 years. I can see this making sense, as it would remove some of the political pressure of justices to, you know, wait until a like-minded President is in office to step aside. It’s a fairly arbitrary way of running a court system and having regular changes would ensure that there isn’t as much of a pressure to outlast any electoral deadlines, only serve your single term on the bench. And as Yglesias points out, it also would allow for the most qualified person, not the most qualified person under 50, to be considered. So much emphasis is now placed on finding a judge who can serve three or even four decades on the bench. It’s that way because of the requirements of the system as it stands now, but it doesn’t really make things any better.

I don’t expect there to be any changes to how the Supreme Court works, but it certainly is interesting to think about better systems than the life-time appointments we currently have.

I’m not a lawyer nor a legal scholar, but I can’t say that I’m excited about Elena Kagan’s pick to replace John Paul Stevens on the US Supreme Court. My biggest concern is that she is being given a lifetime seat – which for someone who is only fifty, could mean thirty years on the bench or more – but there is no clear indication that she is going to be a liberal justice. The composition of the Court is important, as the Bush administration moved the Court far to the right with the appointments of Roberts and Alito. The Obama administration should have attempted to fortify the left flank of the Court and there is not only no indication that Kagan will do that, but that the Obama administration even considers shoring up the liberal side of the Court a goal they seek to achieve with their nominee.

Glenn Greenwald, who has made very persuasive arguments against Kagan’s pick over the last number of months, writes about the failure of Obama to advance a liberal composition on the Court:

The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they’re eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don’t really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn?

As Glenn suggests, this is symptomatic with the larger Beltway Democrat modus operandi of not fighting for things they claim to believe in. Beyond the specific merits of Kagan versus other candidates on the short list, it is incredibly discouraging that the President does not want to have a large national debate about the importance of liberal interpretations of the Constitution and US law.

I expect many Democrats will be strongly behind Kagan because she is the President’s pick. It is a cynical play by Obama, made on the safe bet of Democratic tribalism. Of course, the alternative between tribal positions on the left and those of the right is the establishment of pessimism and ultimately sitting out the fights picked by Beltway Democrats to achieve weak positions or support ciphers in positions of prominence.

The New York Times has a profile piece of Supreme Court Justice John Paul Stevens. It’s worth a read, as Stevens will likely go down as one of the great jurists of the late twentieth and early twenty-first centuries.

The article closes with a line from Stevens’ dissent in Citizens United. The last line, in fact. I went back and looked at the full Stevens’ dissent closing and thought the Times’ reporter actually shortchanged Stevens’ brilliance by taking only the closing line. Here’s a thicker cut:

At bottom, the Court’s opinion is thus a rejection of the com­mon sense of the American people, who have recognized a need to prevent corporations from undermining self­ government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.