One element consistent of the political processes since the Warren court is the cultural wars. This ideological conflict really came to prominence during the conservative vs. liberal debates regarding gender, race, and religion in the 1920s. Moreover, the same arguments hold true for the decade of the 1950s and the 1980s. With the retirement of Justice Stevens from the Court, both the left and the right have armed themselves for conflict; I am not sure why.
If the Court is supposed to be a neutral arbiter of the Constitution, then why did the Framers construct a system that allows a partisan official of ideological disposition to make such a selection? I would hope that my students would answer this question by stating that during the construction of the Constitution, there “technically” were no political parties; however, even that answer would not be wholly sufficient, seeing that the process of drafting the Constitution was in and of itself an ideological conflict between Federalist and Anti-Federalist. This division shaped much of the political conflicts throughout the 1790s.
So, I ask the question, why go to arms over a presidential appointment to the Court? According to the Constitution:
The power to appoint Justices belongs to the President under the Constitution (Article II, Section 2). The “advice and
consent” of the Senate is required for any Supreme Court appointment. The Senate Judiciary Committee conducts
hearings to question nominees and determine their suitability. Thereafter, the whole Senate considers the nomination; a
simple majority vote is required to confirm or to reject a nominee. In some instances, the Senate may defeat a nominee
by failing to take a final vote on the nominee, rather than by explicit rejection. For example, the minority may filibuster
a nominee, indefinitely prolonging debate and refusing to permit a vote.
Thus, since this is the case, the Framers constructed a system in which an ideological figure has the power to appoint a person to uphold the Constitutional rights of U.S. citizens, but others who might not hold that position can check his/her powers to appoint.
I am hoping the president will appease the base that elected him by selecting Diane Wood to the bench; I like the fact that she is a woman, but I also like that she holds the intellectual understanding that the Constitution is a document for all Americans. It is important that groups that hold their own ideological positions do not work against that of others. I am a fan of the Bill of Rights and believe they are not in place to deny the rights of Americans, but to protect those rights. And yes, that means the rights of religious fundamentalist or those who are in the KKK; we cannot pick here.
The United States is a plural society. The joy of pluralism is that it offers an array of diverse views. A Muslim should have the same rights as that of a Christian, as noted in the 1st Amendment. A justice should be one that looks to uphold all aspects of the Bill of Rights. If Obama fails to select Wood to the Court, many will see him as a weak president.