Editore"s Note
Tilting at Windmills

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April 10, 2010

IF A FIGHT IS INEVITABLE.... If the wake of Supreme Court Justice John Paul Stevens' retirement announcement, the various players are, not surprisingly, already positioning themselves for a nomination fight. We've seen a few Republican senators, with varying degrees of subtlety, speculate about their willingness to filibuster a nominee that hasn't even been chosen.

Much of the speculation, then, is over whether President Obama wants to "pick a fight," selecting a solid progressive (a "bold" choice), or a more easy-to-confirm moderate (a "safe" choice).

I don't necessarily have a favorite or an outside-the-box recommendation -- if Obama can find a jurist with John Paul Stevens' temperament, intellect, and values, but 50 years younger, that'd work for me just fine -- but it's worth appreciating the fact that it's not entirely up to the president to "pick a fight" or not. Ezra Klein had a good item on this late yesterday.

President Obama could nominate the guy on the Quaker Oats box and Glenn Beck would find a way to connect him to Trotsky on his blackboard ("you know who else liked oatmeal!?" ). Moreover, the GOP will enthusiastically help him on that one. Midterm elections are about base mobilization, and nothing is better for base mobilization than an asymmetric Supreme Court fight in which, say, evangelicals are furious about the nominee and liberals are skeptical (which you're already seeing in the early reaction against Elena Kagan).

So there's a case that the Obama administration should pick someone who Democrats will really like and who the public is likely to eventually support.... [T]he conventional wisdom that Obama should avoid a fight here might be wrong. He's likely to get one whether he likes it or not, and the question is more whether it'll be a fight that his supporters want to be part of.

Agreed. National Review went so far yesterday as to call on Republicans to resist the eventual nominee, no matter who's selected. And while the "fight" over Sotomayor was mild in retrospect, it came fairly early in the president's first year -- Republicans have managed to become less reasonable and more reckless since. In an election year, their irresponsible tendencies are likely to be that much more intense.

I don't doubt that the White House is aware of this, but it needs to be underscored anyway: there's practically no way for Obama to get a qualified, center-left jurist through the Senate without intense far-right opposition. Considering the short list based on who'll face the least contentious confirmation process is a fool's errand.

Steve Benen 8:10 AM Permalink | Trackbacks | Comments (38)

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Al Gore

Posted by: Stevio on April 10, 2010 at 8:11 AM | PERMALINK

There is a way to handle this problem. Play up the comments of senators willing to filibuster an unknown nominee and then run their up or down vote tapes over and over.

I like Al Gore by the way. He isn't a lawyer, but there is nothing in the constitution that says a justice has to be a lawyer. Another might be Hillary Clinton, but she is doing an outstanding job as Secretary of State. I might also suggest John Kerry but he is too valuable in the Senate.

Posted by: Ron Byers on April 10, 2010 at 8:16 AM | PERMALINK

Hey, Stevio... I like that idea. Can you imagine Republican heads exploding over that nominee?

Posted by: pol on April 10, 2010 at 8:17 AM | PERMALINK

i just dont wanna see me no cass sunstein slouching toward Sotus to be born... that guy gives me the willies...

Posted by: neill on April 10, 2010 at 8:17 AM | PERMALINK

Laurence Tribe. Liberal, smart, widely respected, can handle the short-term media pressure.

Posted by: Rathskeller on April 10, 2010 at 8:34 AM | PERMALINK

But who does Rahm want? I'm sure he's got a selection that will sail through.

Posted by: DougMN on April 10, 2010 at 8:38 AM | PERMALINK

Eisenhower appointed Associate Justice William Brennan to the Supreme Court in 1956 in a pre-election tactical recess appointment. Obama could energize the Democratic base similarly, acting decisively after months of Republican obstructionism.

Washington appointed John Rutledge as Chief Justice with a recess appointment.

Posted by: GVandergrift on April 10, 2010 at 8:38 AM | PERMALINK

Obama/Rahm could learn something from this, courtesy of "Melissa Delzio's Portfolio" on Behance Network -- "BE BUT BOLD"

“One favorite Christmas sport, very generally played on Christmas Eve, has been handed down to us from time immemorial under the name of ‘Snapdragon.’ To our English readers this amusement is perfectly familiar, but it is almost unknown in Scotland, and it seems therefore desirable here to give a description of the pastime.

A quantity of raisins are deposited in a large dish or bowl (the broader and shallower this is, the better), and brandy or some other spirit is poured over the fruit and ignited. The bystanders now endeavour, by turns, to grasp a raisin, by plunging their hands through the flames; and as this is somewhat of an arduous feat, requiring both courage and rapidity of action, a considerable amount of laughter and merriment is evoked at the expense of the unsuccessful competitors.”

and carolers will sing the old Snapdragon theme song:

‘Here he comes with flaming bowl,
Don’t he mean to take his toll,
Snip! Snap! Dragon!

Take care you don’t take too much,
Be not greedy in your clutch,
Snip! Snap! Dragon!

With his blue and lapping tongue
Many of you will be stung,
Snip! Snap! Dragon!

For he snaps at all that comes
Snatching at his feast of plums,
Snip! Snap! Dragon!

But Old Christmas makes him come,
Though he looks so fee! fa! fum!
Snip! Snap! Dragon!

Don’t ‘ee fear him, be but bold
Out he goes, his flames are cold,
Snip! Snap! Dragon!’

Posted by: Greg Worley on April 10, 2010 at 8:41 AM | PERMALINK
President Obama could nominate the guy on the Quaker Oats box
I thought the "guy" on the Quaker Oats box was Barbara Bush.

Posted by: navamske on April 10, 2010 at 8:43 AM | PERMALINK

More to the point, Obama has a better shot of getting a left-of-center nominee approved now than he will after the election, when Republicans pick up seats in the Senate. Unless he's down with seeing the Roberts court become even more Roberts, he needs to nominate someone to the left and let them throw their hissy fit.

Posted by: Jennifer on April 10, 2010 at 8:46 AM | PERMALINK

Ann Coulter!
Then, we could have a Liberal pundit say the following, and see how she likes it:
"We need somebody to put rat poisoning in Justice Coulter's creme brulee," C U N D GULAG said. "That's just a joke, for you in the media."

On the serious side, how about either Deval Patrick (or another competent African-American), an Oriental, or a woman candidate. Let them filibuster a black appointee, someone from the growing Oriental population, or another woman (we need more female Justices, since women are over 50% of the population). It'll display and reinforce the Republican's racist and misogynistic tendencies to the voting public.

Posted by: c u n d gulag on April 10, 2010 at 8:47 AM | PERMALINK

I, hereby, nominate myself to be Obama's nominee to the Supreme Court.

I am not a lawyer, but will commit to actually understanding cases and all relevant precedence.

I promise to be the anti-Thomas and will actually ask questions during oral arguments.

I promise to be the anti-Thomas and vote opposite Scalia on every case.

I promise to hire the best and brightest law clerks to provide legal precedence and theory to justify rulings that do not always favor corporate and wealthy interests.

I promise to hire the best and brightest law clerks to provide legal precedence and theory to justify rulings in favor of net neutrality.

I promise to uphold the Constitution and to work to prevent this and future presidents from failing to investigate the crimes of previous presidents.

Posted by: AmusedOldVet on April 10, 2010 at 8:50 AM | PERMALINK

Hillary Rodham Clinton.

THAT will make the Republican's explode.

Posted by: eeyore on April 10, 2010 at 8:51 AM | PERMALINK

I agree with the observation that there is no way he can avoid a fight so it is better not to make an "accommodating" pick. It is also true that he may have the best senate numbers that he will ever get and so he better pick someone now to best take advanatge of that advantage.

Posted by: tomb on April 10, 2010 at 9:02 AM | PERMALINK

the gnashing of the teeth and the pretend anxiety of what will happen next is ridiculous. obama has been 100% consistent in thwarting the left and implementing a center-right agenda. There can be no doubt that Stevens replacement will be a center-right, corporate-friendly, anti-people jurist in spite of all the insane histrionic spectacle that the republicans and their violently insane base will put on making the nominee out to be an extreme leftist.

Posted by: pluege on April 10, 2010 at 9:03 AM | PERMALINK

Once again we see the politicians putting the cart before the horse: Winning re-election trumps sane governance.

I guess when you are the party of No Ideas, that's your only recourse. . .

Posted by: DAY on April 10, 2010 at 9:06 AM | PERMALINK

Perhaps he could reach out, once again, and play the bi-partisanship card by appointing either George Will of Bill O'Arrogantone as both of them, following any legal ruling, speak and write as though they believe they are far more learned in the law than any jurist in the land.

Posted by: berttheclock on April 10, 2010 at 9:09 AM | PERMALINK

We tolerated Roberts and Alito. Bush had his litmus tests, and they proved they were qualified on paper, but wholly conservative. They were confirmed without much of a fight. Now the Republicans refuse to do the same?

Fuck them.

Bring on Koh, Bring on Karlan.

Posted by: Quinn on April 10, 2010 at 9:13 AM | PERMALINK

I like the idea of a recess appointment after the Repubs scream and pound and generally behave like spoiled brats.

Whats the point of a confirmation process if you know the outcome in advance?


If its impossible to to have a rational discussion, why bother?

Ok, preserve the form, but after a while if no progress can be made..
one cannot just give in to these tactics...

Posted by: KurtRex14533 on April 10, 2010 at 9:14 AM | PERMALINK

Obama needs to pick a far-left, well-qualified black woman. Strategically, it's hard for the R's to criticize, but it would make their heads explode. Win/win.

Posted by: Govt Skeptic on April 10, 2010 at 9:15 AM | PERMALINK

Strategically, it's hard for the R's to criticize

You kidding?


Posted by: spork_incident on April 10, 2010 at 9:40 AM | PERMALINK

I agree with Klein. If Obama chose Robert Bork, the Republicans would vote against him. Better be hung for a sheep than a lamb IMO.

Posted by: Nancy Irving on April 10, 2010 at 9:46 AM | PERMALINK

You could have all 40 repub senators saying that they will filibuster whoever Obama would pick before the fact; but once the issue was joined they would say to the press"if only Obama had been willing to be bipartisan, there wouldn't be this fight" and the press would play that over and over as oppose to stating the obvious facts.

Posted by: Eric on April 10, 2010 at 9:51 AM | PERMALINK

Naming Hillary would put Republican Senators in a terrible bind. If she's confirmed, the base's heads explode. If they filibuster, they diminish the chance ANY Senator ever gets nominated to a Court position.

Posted by: JMG on April 10, 2010 at 9:55 AM | PERMALINK

Look at it this way: We hold enough of a majority to end the filibuster; it's called "50-plus-Biden." So, we're on good ground---and this is a fight worth fighting.

I say, "Bring It."

Posted by: S. Waybright on April 10, 2010 at 10:28 AM | PERMALINK

This will be a win for Obama because the GOP will not able to hold their caucus together for a filibuster of any remotely credible nominee. The GOP will have no choice to start a filibuster to satisfy their crazies, but no ability to sustain it. The political goal (as distinct from the policy goal) should be nominate someone who will draw GOP opposition that will reinforce their image as extremist, bigoted, crazy and obstructionist. The 2010 elections have to be our chance to vote to keep crazy bigots from gaining power in our government.

Posted by: Tom in MA on April 10, 2010 at 10:33 AM | PERMALINK

When you picture a world where people could get away with filibustering in daily life, you find out how preposterous this Senate ritual is.

Here's a short video that paints that picture: Flibuster Fever

Posted by: bondwooley on April 10, 2010 at 10:47 AM | PERMALINK

Obama may have scored big points by coming out at the end of the health care debate and actually fighting, but he didn't learn a damn thing. Just as soon as the victory lap was over, he was back at work, running up the white flag of surrender and then offering to negotiate in a bipartisan way with The Enemy over climate change - giving away the store on drilling.

The right didn't win in 1994 by creating a new majority. They held on to their minority, while the real majority let themselves be sucker-punched by their "principles" that Clinton was unworthy of liberal support, and the result was the last 16 years of politics.

If Obama continues to give his supporters reasons to lose their enthusiasm for him and his programs by his wussy way of dealing with the world, he's going to create his own defeat, no matter how much people like me keep telling people I know that they have to vote for him regardless, to keep the Right from taking over.

He needs to fire that little Surrender Sissy, the wonderful Rahm Emmanuel - let him come out here to Hollywood and screw up movies with his little brother.

Posted by: TCinLA on April 10, 2010 at 11:03 AM | PERMALINK

Whoever Obama nominates will be portrayed by congressional Republicans and right-wing media as a raving leftist, and the timing of the confirmation process guarantees that the picture of liberalism that swing voters carry into the fall elections will be embodied by this nominee. If there’s a lengthy confirmation battle - and who doubts that? - the nominee will be the de facto standard-bearer of the Democrats in November.

So, the President should pick a progressive who stands up for individuals against state power, consumers against corporate power, regular folks against elites - a progressive whose views might resonate with libertarians and populists, and who can articulate those views persuasively.

I don’t think Obama is going to find someone like that in the legal-scholar orbit, and probably not among appellate court judges. There may be some possibilities among state supreme court justices. But the most promising talent pools to explore are (1) prosecutors who’ve gone after corporate crime and political corruption, and (2) politicians who haven’t spent much time in Washington.

Obama and his advisors shouldn’t fall into the trap of settling for an “inoffensive” nominee - the Sotomayor confirmation showed that if right-wingers can’t find a smoking gun, they’ll fabricate one - or someone who tries to placate Republicans in confirmation hearings. They won’t be placated. Effective rebuttal is better politics, and a good reason to choose someone experienced in courtroom or campaign give-and-take.

This is not a good time to let ethnic or gender identity govern the choice, unless the President can find someone whose identity can be played back against the opposition - a latter-day Hugo Black, say, only this time I would look to the Midwest or Mountain West rather than the South.

Posted by: allbetsareoff on April 10, 2010 at 11:36 AM | PERMALINK

"If Obama chose Robert Bork, the Republicans would vote against him."

Let's see them vote against Ron Paul.

Posted by: Forrest on April 10, 2010 at 12:03 PM | PERMALINK

Tribe and Clinton are too old now.

Anyone who has ever heard Pam Karlan speak (I heard her debate a right-wing law professor on whether the Constitution should be a "living" document and whether justices should "just call balls and strikes") would understand why I think she would be the best choice in an ideal world. young, very progressive, down-to-earth, and communicates progressive constitutionalism very well and in fun, easy to grasp ways. but still very tough.

That said, Koh would be an even better pick when the politics are factored in. He was Dean of Yale Law, so they can't credibly attack his abilities or credentials.

And after the R's just burned bridges with the Hispanic community by going after Sotomayor, lets make this electorally painful for thme as well by letting them stand in the way of the first Asian-American justice. (Plus there were 4 R's plus JoeLie who voted for him as legal advisor to Dept of State just last year)

And by all accounts he is more reliably liberal than Kagen or Garland.

Posted by: zeitgeist on April 10, 2010 at 12:47 PM | PERMALINK

Bush had his litmus tests, and they proved they were qualified on paper, but wholly conservative. They were confirmed without much of a fight. Now the Republicans refuse to do the same?
Yeah ... and what a total surprise that is.

But I have roughly zero faith that Obama won't begin by floating a right-of-center "compromise" nominee, over whom the Republicans will scream bloody murder and foam at the mouth, and then try to pacify them with rumors of a right-of-Scalia nominee, over whom they will scream bloody murder and foam at the mouth, and then fall back to his default We Must Be Bipartisan position and find some budding Rehnquisling to put up instead.

About whom the Republicans will scream bloody murder and foam at the mouth, because even this one will be too much of a lefty. (Remember, for today's Republicans, Attila the Hun is too much of a lefty.)

And then the Dems will vote to confirm.

Lose-lose. It's the type of deal we seem to do best.

Posted by: Fleas correct the era on April 10, 2010 at 3:44 PM | PERMALINK

How is it that we have so many far right activist judges on the SC but Obama and the Dems seem to be afraid to nominate anyone but a moderate. Knowing which fights to pick is wisdom but knowing which fights are absolutely necessary to our democracy is honorable. We need a left wing, left leaning Justice just to balance the court. A true liberal progressive constitutional expert in courage.

No matter who Obama picks the right will filibuster so for goodness sake, make it worthwhile. (but then after Bush recess appointed mustache face Bolton for the UN whom all dems opposed, Obama failed to recess appoint Dawn Johnsen for OLC and has now lost her completely...which many believe he was only appeasing the base and was never serious about getting her appointed anyway. What a 'dis'-appointment. Just made me lose more respect for Obama and his bipartisan bullshit.)

Posted by: bjobotts on April 10, 2010 at 6:33 PM | PERMALINK

President Obama could nominate the guy on the Quaker Oats box

I'm for it!

Posted by: Quaker in a Basement on April 10, 2010 at 9:54 PM | PERMALINK

Up or down vote! Up or down vote! Up or down vote!

(repeat frequently...)

Posted by: PQuincy on April 10, 2010 at 11:20 PM | PERMALINK

I'd like to see him nominate Patrick Fitzgerald.

Posted by: Jennifer on April 11, 2010 at 12:16 AM | PERMALINK

Kagan gets my vote because she is 49 and female: actuarially, she will probably be around for a while. Woods is 59.

Posted by: Measure for Measure on April 11, 2010 at 3:57 AM | PERMALINK

How about a left of center-left, to give the court ACTUAL balance?!

Is there anybody out there?

Posted by: Doug on April 11, 2010 at 11:26 PM | PERMALINK



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