FIRST ONE @ ONE FIRST

Filibustering the Next Nominee

Posted in Clairvoyance, Law and Politics by Mike Sacks on April 5, 2010

The trifecta of recent Justice Stevens interviews has pushed to the fore speculation about his successor.  Such speculation has been going on for quite a while–F1@1F has been at it since its first day of existence.  This weekend, two members of the Senate Judiciary Committee, responded to the interviews with their own thoughts.

From FOXNews.com yesterday:

Senate Minority Whip Jon Kyl, R-Ariz., speaking on “Fox News Sunday,” warned President Obama not to try nominating anyone “overly ideological” to replace Stevens, who is known as the leader of the liberal wing of the court.

He suggested the party did not want anyone so outspoken as Sonia Sotomayor, who was picked to replace former Justice David Souter last year, and said the decision on whether the GOP will filibuster will “all depend” on who the next nominee is.

“I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test,” Kyl said. “And if he doesn’t nominate someone who is overly ideological, I don’t think — you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster.”

He said Republicans would only filibuster under “extraordinary circumstances,” the standard agreed to after a series of clashes in Congress over judicial nominees under former President George W. Bush.

At least one Democrat is taking Kyl’s threats seriously.

Stevens told The Washington Post he “will surely” retire while Obama is still president. But Sen. Arlen Specter, D-Pa., told “Fox News Sunday” he hopes Stevens will wait until next year to do it, when the politics in Congress would potentially be a bit less toxic.

“I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate on a Supreme Court nominee,” Specter said. “I think if a year passes there’s a much better chance we can come to a consensus.”

Back in January, immediately after Scott Brown’s Senate win, I wrote that President Obama may be able to use Republican apoplectic overconfidence to his advantage:

Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

With Republicans resolving to run on repealing and replacing the PPACA, expect some commentators to reflect Senator Specter’s squeamishness in the face of Senator Kyl’s threats.  They will clutch Massachusetts ballots and wave the Court’s Citizens United opinion so to reveal doomsday visions of insurance companies emptying their freshly unchained coffers into the 2010 campaign on a multimedia effort to smear all incumbents who voted for health care reform as fascistssocialists, and communists.

In response to the GOP’s resolution, Obama told them to “go for it.”  He might as well have been speaking about Republicans’ including any of his possible judicial nominees in their Party of No platform for the midterm election.

Specifically, Obama must understand that if the GOP filibusters or stalls his next Supreme Court nominee into the fall, then the Republicans will be the ones that suffer come the first Monday in October.  If Justice Stevens conditions his resignation upon the confirmation of his successor, then Obama will be able to paint the GOP as a group of blackhearts gleefully depriving a 90-year-old man of his hard-earned retirement.  And if Stevens unconditionally steps down, then a Congressional minority will be held responsible for keeping the Court from operating at full capacity at the start of next term.

In either situation, the Court could become a big issue for the final month before Election Day.   Don’t be surprised if the Chief Justice, facing a massive stack of cert. petitions awaiting the justices for their late September conference, extends his public colloquy with Obama to join him in admonishing the Senate minority to cease playing politics with the Court.

UPDATE: Just as I posted this, Dahlia Lithwick’s latest, “Short Shrift: The Supreme Court Shortlist as Political Anthropology,” popped up in my reader:

As an anthropological document, the Bloomberg News list [of Wood, Kagan, and Garland] reveals a good deal about the general fatigue of the court-watchers. We’ve become so reliant upon the old scripts about “activists” and “umpires” and abortion and religion that we prefer them to experimenting with new ones.

I believe that this latest round will be the last to follow the old scripts, and even then, it may depart from them.

  • Garland will be the only nominee of the three that needn’t depart by choice or force from the old script.  He’s a moderate, and the Republicans will not push hard against him if he’s nominated.
  • Kagan’s nomination will be novel only because she is not, nor has she ever been, a federal judge.  Historically, however, Solicitors General have been commonly put forward for the Court: the last SG to have been nominated was Bork, the last to have been confirmed was Thurgood Marshall.  Still, if you thought that Sotomayor reached a certain kind of performance art perfection in her confirmation hearing stonewall, Kagan’s may be even more fantastically opaque.
  • While Wood is a federal appeals judge, she will be the first full-fledged liberal nominee to the Court since Thurgood Marshall, even if her liberal jurisprudence would have been deemed only slightly left of center in his time.  Further, with her extensive paper trail and Congress’s Democratic majority, Wood may even break the post-Bork spell on fearful, know-nothing confirmation hearings.  If she can finally kill off that bit of the old script, then Obama and future presidents of either party may begin diversifying their Supreme Court shortlists to include other capable nominees, judges or not, who can be confirmed for what they say, not for what they don’t say.

UPDATE II: Newsy.com has compiled a video roundup of the recent Stevens hubbub:

5 Responses

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  1. Anne said, on April 5, 2010 at 7:07 pm

    great post, mike, thanks. looking forward to hearing more on potential nominees as this progresses.

  2. Melancton Smith said, on April 5, 2010 at 7:08 pm

    Don’t you think that these geezers waiting to retire during a specific party’s control is also playing politics with the court?

  3. [...] statement seems to say that Stevens is not sticking around until his successor is seated.  As I wrote earlier this week, the GOP should be very mindful of the political consequences of stalling the confirmation process [...]

  4. Caleb said, on April 9, 2010 at 9:55 pm

    Actually, Kagan’s nomination would not really be novel for not having been a judge. Historically there are more Supreme Court justices (more than 60) who were not prior judges than were. It is more recently (since Rehnquist) that prior judges have become more common nominations. In fact only two of the seventeen Chief Justices were prior judges – Vinson and Roberts. Most of them came from state government (members of Congress or governors). Can you imagine today if Obama nominated a governor for the Court?

    Kagan would be in pretty good company if you ask me – Earn Warren, Berger, Thurgood Marshall, Sandra Day and many more.

  5. [...] as expressed on F1@1F’s first day of existence in late December, as well as several times pieces I’ve posted [...]


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