Monday, April 12, 2010

Replacing Justice Stevens

Upon the announcement that Justice Stevens is indeed retiring from the Court, Senate Republicans immediately began to offer their views on the future nominee. According to Senator McConnell, for example, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law," while Senator Lamar Alexander warns that "I hope President Obama will nominate his successor from the middle and not from the fringe. His nominee will be fairly and respectfully considered. The question is not whether the president's nominee is politically 'on my side,' but whether he or she is well-qualified and has a record of being impartial." In case anybody missed the implication, he added: "In truly extraordinary cases, I reserve the prerogative to vote no on confirmation or even to vote to deny an up-or-down vote."

The writing is already on the wall, and I can only conclude one thing: it stinks to be a progressive.

When Republican presidents nominate justices, they usually pull no punches: think here of the present conservative majority on the Court. Justices Scalia and Thomas are "impartial and even-handed" in the same way that I am from Mars. The same goes for Justice Alito and Chief Justice Roberts. Yet somehow Republican presidents appointed them to the bench and Senate majorities confirmed them. No talk of filibusters then, but rather, of nuclear options and a fair vote.

In contrast, Democratic nominees are quite tame in comparison. There is simply no way to look at Justices Breyer, Ginsburg and Sotomayor and think of them as ideological counterweights to Scalia and Thomas. Case in point: the conservative majority on the Court is so far to the right that a year ago, with Justice Souter on the bench, two of the four "liberals" were appointed by Republican Presidents. What does that say about the ideological commitments of this majority?

This is simply maddening (or, depending on your point of view, a brilliant political strategy, nurtured and developed over time). The conventional wisdom portrays any Democratic nominee as an activist, yet "conservative" nominees are "strict constructionist with deep respect for the rule of law." This is a blatant canard, but one with a lot of purchase where it matters. This is the main reason why conservatives can go to the far right, to the fringe of the party, and grab anybody they want, and liberals must come to the center. Conservatives can choose Justice Alito, but liberals can barely get Justice Sotomayor (I imagine those 31 Senators voting against her would only have supported President Obama's nominee if she had been Harriet Miers).

It is clear that the Republicans hold the upper hand and will continue to do so until the Democrats get a backbone. In case any further proof is necessary, see, for example, Dawn Johnsen's failed nomination to head the Office of Legal Counsel. In the aftermath of John Yoo's and Jay Bybee's stint in this office, I didn't think there would ever be any Republican objection to a Democratic nominee for the foreseeable future. I was clearly wrong, by a mile.

If Democrats had a backbone, they would nominate Pam Karlan, even Diane Wood. That is why Tom Goldstein wrote back in February that Elena Kagan is a "prohibitive favorite" or, according to Elie Mystal at Above the Law, the "front runner."

This is depressing and even "harmful," but not terribly surprising. Guy has much more to say about nominating Kagan, and I look forward to his future post on the subject. For the moment, I will only offer the following, written by Tom Goldstein last October: "I don't know anyone who has had a conversation with [Elena Kagan] in which she expressed a personal conviction on a question of constitutional law in the past decade." That is not disqualifying, to be sure, but hardly something that should instead elevate a person to the select realm of Supreme Court nominee.