Here’s an excerpt of the panelists discussing the sustained woefulness of our confirmation process:
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.
If the Court dipped its toes into the gay marriage debate through its ruling against the videostreaming of the Prop. 8 case, then the Court will step into the shallow end in April to hear Doe No. 1, et al., v. Reed, et al., a case arising from a petition to get an anti-domestic partnership referendum onto a Washington State ballot.
Here’s Lyle Denniston from SCOTUSBlog:
The Court’s vote to hear the case of Doe No. 1, et al., v. Reed, et al. (09-559) marked the second time this week that the Court opted to act on controversies involving opponents of gay rights’ claims that publicity about their political activity has led to threats and even some violence against them. On Wednesday, the Court shut down a plan to televise the federal court trial challenging California’s ban on same-sex marriage, displaying concern for the potential effect on supporters of that ban when they appear as witnesses at the trial.
The new case involves an effort to bring out in public the identities of individuals in Washington State who signed petitions to put on the state election ballot a referendum that would overturn a new state law extending the benefits of marriage (but not marriage itself) to couples registered as “domestic partners.” (That referendum failed, and the law remains in effect; voters approved the new law by a 53-47 percent margin last November.)
In taking the Washington case to the Court, the petition-signers’ lawyer said the confidentiality issue “is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation.” One group, the filing said, has posted on its web site information about gay marriage petition-signers in Arkansas, Florida, Massachusetts and Oregon.