The list of issues vying for the attention of the American Jewish community is both daunting and ever-growing. We, along with the president and Congress, are dealing with the economic crisis, health care reform, the threat of a nuclear Iran, the Middle East peace process, global climate change, and two wars – and that is merely the top of our “to do” list.
What is missing on the Jewish communal agenda is also striking. With the exception of the advocacy of the Union for Reform Judaism and the National Council of Jewish Women, the debate about who will be chosen to fill the impending vacancy on the U.S. Supreme Court – a decision that will have tremendous implications – is largely taking place without the American Jewish community.
Although virtually every one of the issues on our agenda is impacted by the federal courts, the Jewish community is largely silent in debates over judicial nominees. The silence must end. Jewish groups that so diligently and effectively fight for equal rights and fundamental liberties in the legislative and executive branches must make their voices heard in conversations about the next Supreme Court justice.
These conversations already are under way. Justice David Souter has announced that he will be retiring in June, at the end of the current Supreme Court term. Of all the pressing and vexing issues before President Obama, only the selection of a new justice gives him the opportunity to affect all of the other issues on our nation’s agenda – not just today, but for decades to come.
Supreme Court decisions shape our nation as much as any actions of the legislative or executive branches. Brown v. Board (1954) sits next to the Civil Rights and Voting Rights acts as a key turning point in the struggle for civil rights. In Massachusetts v. EPA (2007), the court recognized for the first time that carbon dioxide is a major contributor to global warming, giving the Environmental Protection Agency the authority to regulate tailpipe emissions. And in Boumediene v. Bush (2008), the court spoke clearly on the scope of the president’s power, ruling that detainees at Guantanamo Bay have the right to habeas corpus. The Massachusetts and Boumediene cases were decided 5-4 and easily could have been reversed had a single justice expressed a differing opinion.
Most important, the new justice has the potential to directly influence federal jurisprudence for decades. New justices given lifetime appointments typically spend many years, sometimes decades, longer on the court than the president who appoints them spends in office. William Douglas, history’s longest-serving justice, kept his seat for 36 years; his replacement, Justice John Paul Stevens, has served 33 years. Thirteen presidents have served during their tenures.
It is no surprise, then, that a president’s Supreme Court appointees are a key part of his legacy.
Any justice appointed by President Obama is likely to be a moderate-liberal vote on the court, which was sometimes true of Justice Souter – but not always. As one of only nine justices, the individual selected will have the key ability to influence the types of cases the court hears and the decisions it renders.
President Obama, a former professor of constitutional law, undoubtedly understands the gravity of this decision. It is hoped that he will appoint someone with excellent credentials who will adhere to constitutional values and approach every case with an open mind. America needs a justice who, by the power of both intellectual analysis and consensus coalition-building, can craft majorities in close decisions that will preserve the separation of church and state and protect the Warren and Burger court’s expansive interpretations of our fundamental rights. A leader of this sort could alter the fragile balance of the current court, which produces many 5-4 decisions – the majority reflect a conservative viewpoint – and significantly impact our nation’s constitutional discourse.
The president’s announcement of his nominee is imminent. Now is the time for us to pay attention, consider the nominee’s professional credentials and record, and find a way to make our voices heard. What hangs in the balance is nothing less than the future resolution of today’s fierce debates over church-state separation, civil rights, the balance of powers, environmental protection, and, without exaggeration, nearly every issue on our Jewish communal agenda.
We cannot afford to remain on the sidelines of this debate.