Scalia

Before his body has been interred, the battles have begun. Probably inevitable during this primary season and general election year, but unseemly nevertheless.

Over 300 days left in Obama’s presidency. The prospect of nominating someone whose voice is assumed to be sympathetic to the views of each side of the political spectrum is just too alluring to be left alone.

Of course Obama is going to nominate someone. Of course the Republicans in the Senate are going to fight. Each side is trying to grab the wheel of the political process and move it their way.

It’s about control mostly. I watched an interesting TED talk yesterday by economist Dambisa Moyo. It wasn’t fascinating but it reminded me of an interesting definition – that of capitalism having the requirement that the factors of production, capital and labor, be in the control of the private sector. It’s about where control rests: the wisdom of the market or the wisdom of the ‘government’.

Most of the angst concerning the nomination of Supreme Court Justices seems to focus on social and constitutional issues: abortion, gun control, gay marriage, states rights. Should the constitution be interpreted in the context of today’s societal needs or did the founding fathers give us everything we need in perpetuity?

It’s a familiar debate and reminds me of the debates, when I was studying law 30 years ago, about the judicial philosophy of Lord Denning, an icon of the British legal establishment. He was a proponent of judge made law to fill in the gaps and round out the legislative process. Others disagreed.

It is not clear to me that the justices always vote in the direction of their assumed political preferences – liberal or conservative. Some do; some don’t.

Obama is widely considered by conservatives to be frustrated with Congress to the point that he is prepared to circumvent it at any point. Liberals are annoyed he has not done more to bypass an intransigent Congress. Maybe. I understand his frustration. Partly, it reflects his distaste for the political process of horse-trading. Partly, it reflects a legitimate concern – held it seems by much of the electorate – about the dysfunction of Congress.

I am interested to see who he will nominate. I am not convinced, though my politics are largely different from his, that he will nominate someone who does not have the highest judicial qualifications.