Now Comes the True Test of Obama's Presidency and Legacy

By Marc Ash, Reader Supported News

14 February 16

t is clear now that the Supreme Court as Obama leaves it will define both his presidency and his legacy.

The sudden death of Justice Antonin Scalia is not just seismic, it’s a 10.0 on the American political Richter scale. Ironically it’s the biggest thing to happen in the U.S. politically since Bush v Gore, the decision that opened the door for the composition of the current court, until Scalia’s death.

Without any doubt Senate Republicans will seek to thwart Obama’s efforts to appoint a third Supreme Court Justice during his tenure. In essence Republican leaders have said to Obama, almost unanimously, “Don’’t go there.” Obama replied without hesitation, “I am going there.” The stage is set for the biggest, most significant showdown between a U.S. president and an opposition party in decades.

The Republicans in the Senate have the upper hand tactically. As the majority party they control what comes to the floor for a vote and what does not. Further, with a majority they have the voting advantage as well. But as president, Obama has the podium.

Political analysts point to the Affordable Care Act (ACA), also known as Obamacare, as Barack Obama’s signature achievement. But that may not be the lasting effect.

The for-profit health care industry is already finding creative, effective, and very profitable ways to game the ACA statute. Often the people who are Obamacare’s most visible proponents are not actually enrolled in an Obamacare plan. The people who do have Obamacare plans aren’t so sure. They find that they do have access to medical treatment but they are required to use a separate entrance.

History will more likely regard Obama’s two greatest achievements as Justice Elena Kagan and Justice Sonia Sotomayor. Should he succeed in placing a third justice, there is no doubt that the remaking of the Supreme court will be his lasting legacy. This is the moment of his presidency.

Probably nominating a sitting judge, someone who has already been approved by the Senate, gives Obama the most political leverage. Even a nominee who was previously approved by the Senate will still be subjected to the approval process again, and could still be blocked by Senate Republicans. But it really increases the political risk factor of obstruction.

A sitting judge, perhaps someone like U.S. District Court Judge Beryl A. Howell, whose widely noted ruling restoring protections for Great Lakes wolves set her apart.

The ruling established Judge Howell as having a crucial depth of understanding on the environment. That will be of immense importance in coming decades as the U.S. and the world struggle with climate change. Additionally, with her sharply worded rebuke of the Obama administration’s Fish and Wildlife Service and the Bureau of Land Management, she left no doubt as to her independence from political influence.

Obama will fight this battle to remake the Supreme court – in the court of public opinion. If he can increase the political risk of thwarting his nominee to a critical-mass level, Senate Republicans may well relent. In any case, what real argument do they have?

Obama is a duly elected U.S. president, with all powers intact. He has nearly a full year left in his term, one quarter of the time he was elected to serve. The entire nominating and approval process normally takes 4-6 weeks. It is absolutely his right – or as he put it, his “constitutional responsibility” – to appoint a replacement for Justice Antonin Scalia.

The Republicans have the power to to obstruct Obama’s presidential powers, but there is no reasonable independent political argument to support doing that.

The political skill Obama displays in this moment can leave an indelible impact on the course of American history. The day is his to seize.

Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.

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