GOP Opportunity and Peril in the SCOTUS Nomination
posted at 5:40 pm on April 10, 2010 by Jazz Shaw
The announcement of the retirement of Supreme Court Justice John Paul Stevens has brought us once again to the edge of change, though probably not as much as you might think or the kind of change some of you were hoping for. Frankly, I long ago gave up hope that presidents of either party would start appointing truly independent, non-partisan judges – the kind that will occasionally surprise you with brutal, cold readings of the constitution rather than always voting down predictable party lines. Since that’s too much to hope for, there’s really not much sense in dwelling on who Obama’s next nominee will be. And honestly, when I read some people’s short list of choices and find Hillary Clinton at the number one slot, I find myself nipping off for a martini or five anyway.
Better, perhaps, to focus more on the politics and what the GOP will choose to do at this juncture in their role of Best Supporting Party in the Senate follies. The options essentially fall into two categories.
The first choice is fairly well explored by Mark Levin, (replay available from The Right Scoop) who has already rushed to the ramparts and declared that war is upon us and we must filibuster the nominee at all costs. The appeal in some quarters is obvious, as everyone loves a good fight in the political arena. And, as I’ll explain below, there may actually be some benefits in terms of the upcoming elections. But there are also some problems.
First, Levin makes the point that he feels a filibuster of a technically qualified judicial nominee is unconstitutional. But he then turns around and justifies the maneuver anyway. This should leave any conservative in a bit of a quandary, particularly for those who regularly complain about the lack of respect for constitutional principles in the current administration. It leaves you with a bit of a problem if you want to discuss filibusters by a future Democratic minority.
Second, there is the niggling issue of who exactly is to be filibustered. There is not yet a nominee. For all we know, Obama may be nominating Newt Gingrich, Maureen Dowd or Bozo the Clown. Calling for an heroic last stand to keep an as yet unknown person off the court reeks of a less than serious attitude toward the qualifications of the specific justice-to-be.
Last among the negatives is the real net gain to be had. I made a similar point during the Bush appointments when responding to certain liberal detractors. He was never going to nominate a left leaning candidate, so the best one could hope for was a well qualified candidate. The same can be said for President Obama. Anyone he suggests will be too far to the left for hard core conservatives. But who is being replaced? Stevens is arguably the most liberal member of the court and, suspicions aside, it’s hard to question his motives if he wishes to retire at that age. The balance of the court will not be changed. Should the GOP perhaps keep their powder dry for a later battle? And could a filibuster even be sustained? It will only take a couple of Republicans to torpedo the effort and we still have the Maine Sister, John McCain and the newly minted Scott Brown waiting in the wings.
But there is a flip side to this argument. If not a filibuster, Republicans still have some low hanging fruit in front of them. This is a season where the public’s attention has largely turned away from social issues and to concerns over health care, deficits and taxes. The confirmation process for a Supreme Court Justice is a prime opportunity to remind voters of one of the most powerful, enduring functions of a president. Simply by pointing out the record of the nominee prior to confirmation, the system can continue in its normal course but the base is assuaged. It doesn’t have to be a matter of filibuster, but a thorough, examination during the confirmation process serves many purposes. The rising tide lifts all boats, so to speak.
In the end, Stevens will retire and the President isn’t going anywhere until at least January 2013. This may be a moment for cautious, considered discretion rather than open warfare which will simply further alienate the middle.