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.
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.
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.
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.
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.