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:

Conservative Convergence = Liberal Freakout, Cont’d

Posted in Anticipation, Clairvoyance by Mike Sacks on January 20, 2010

Lyle Denniston at SCOTUSBlog writes about how Brown’s election may indeed rattle the Executive Branch if Justice Stevens retires:

[W]hile most legislative observers will be watching for signs of trouble for health care reform and energy legislation, the processing of nominees to the federal courts will be another arena of likely difficulty.

And the next ten months, of course, is the time span during which a Supreme Court vacancy may well occur.  If bipartisanship has any meaning any longer in the Senate, perhaps the President could find nominees who may have some appeal with moderate Republicans.  That almost certainly would translate as nominees decidedly more moderate in their views than the President’s first choice for the Court, Justice Sonia Sotomayor, who has taken a place comfortably in the Court’s liberal wing.  It might even be doubtful that a nominee with views aligned closely with those of Justice Stevens could get confirmed.

With President Obama still having three years to go in his term, Republicans who might be bent on obstructing any Court nominees would probably not be able to hold out long enough to prevent a centrist nominee for the Court from finally getting through.   But a nominee with an identifiable liberal record may well be doomed (assuming that the White House has any lingering interest in that type of choice).

Per Lyle’s forecast, however, 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.

Conservative Convergence = Liberal Freak-Out?

Posted in Anticipation, Clairvoyance by Mike Sacks on January 19, 2010

Tom Goldstein at SCOTUSBlog predicts that Citizens United will come down either tomorrow or Monday morning:

As we have previously noted, the Court will issue opinions tomorrow.  The next opinion day is Monday, January 25.  After that, the Court is not scheduled to issue opinions until Tuesday, February 23.  The month-long gap results from the break between the Court’s January and February sittings.

The Court could add an additional opinion date.  That would have been extremely unlikely under Chief Justice Rehnquist.  But in a variety of small ways, the Roberts Court has taken a more pragmatic approach that deviates from certain traditions.

Nonetheless, the Court is an institution that does rest on tradition, and it will have a strong institutional preference for sticking to its usual calendar.  The Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar.

If Goldstein is right, and if the Court holds to its expected 5-4 conservative victory despite doubts created by the decision’s delay, expect a left-wing freak-out.

First, a Republican takes Ted Kennedy’s Senate seat tonight, destroying the Democrats’ filibuster-proof majority and perhaps with it Kennedy’s dream of health care reform.

Next, should the Court strike down McCain-Feingold‘s restrictions on corporate campaign expenditures, expect liberal commentators to reveal doomsday visions of insurance companies emptying their coffers in the 2010 campaign on a multimedia effort to smear all incumbents supportive of health care reform as fascists, socialists, and communists.

That’s a vicious one-two punch from our Legislative and Judicial branches.  But should that combination come to pass, expect the Executive Branch to stay cool, adjust to the circumstances, and move ahead.   There will be neither war nor implosion.

Fun with the Future

Posted in Clairvoyance by Mike Sacks on December 30, 2009

A few months back, Washington Post ran a contest called, “America’s Next Great Pundit.”  I entered.  But rather than do as prompted and write about the issues currently before us, I decided to have fun with the future.  I got rejected.

Take some of the cast of characters with a grain of salt.  But as to the other characters, turn over your hourglass and pay heed to how the grain of salt turns into a sturdy pile of sand.

July 2021

Justice Antonin Scalia, the 85-year-old senior member of the Supreme Court, held a press conference yesterday to announce his retirement.  Stooped over and weakened by three heart-attacks, he symbolized the conservative Court’s decline.

The iconic jurist had hoped to retire upon the election of Senator Eric Cantor (R-Va) to the Presidency.  The votes, however, weren’t there.

“Now I know how [former Justice] Bill Brennan felt,” the Justice chuckled, alluding to the liberal lion Scalia often battled during his early years on the Court.  Thirty years ago, the elderly Brennan suffered a stroke and promptly sent his letter of resignation to a President on the opposite end of the political spectrum.

Sources close to President Cory Booker report that he will make good on the campaign promise to nominate Barack Obama to the first vacancy on the Supreme Court.  Booker’s declaration relegated his Democratic Primary competitors to meek “me too’s” and helped catapult the former New Jersey Governor over incumbent President Biden at the polls.

At a dinner in Tehran with former Iranian President Mousavi commemorating the tenth anniversary of the fall of Ayatollah Khamenei, Obama told reporters that after five years of democracy promotion abroad, he’s ready to return to Washington for a new challenge should Booker nominate him.

“Iran is our ally and has helped make Iraq and Afghanistan the stable states they are today. Global nukes are approaching zero.  Israel and Palestine are partners in peace. We’ve gotten a lot done.  But look, the law is my first love.  And I’ve got a legacy to protect back home.”

But those hoping Obama will unite with Justice Diane Wood, his second Court appointment, to reconstitute the long-lost, full-throated liberal wing of the court will be disappointed.

“My health care legislation has been turned into a money pit.  My Wall Street regulations have turned into financial straitjackets.  After Justice Kennedy retired, my economic-based affirmative action reforms and abortion-control legislation have been in danger.”

Cantor’s quixotic campaign and its landslide defeat finally nailed the coffin on Scalia’s brand of conservatism, but the contested Democratic nomination points to Booker and Obama as the new vanguard of restraint against the Biden administration’s excesses.

If Obama can get his Tehran comments past the progressive members of the Senate Judiciary Committee, Scalia can satisfy himself with the irony that the liberal messiah of 2008 will be resurrected as the figurehead of new conservatism.

Follow

Get every new post delivered to your Inbox.

Join 114 other followers

%d bloggers like this: