Stories raising the possibility that justices John Paul Stevens and Ruth Bader Ginsburg may leave at roughly the same time have suddenly become part of the Washington conversation, already fueling nightmare scenarios of dragged-out battles between a weakened President Barack Obama and a fiercely contentious Senate over possible replacements.
"Republicans are out for blood, and Democrats are out for a fight," said Steve Wermiel, professor at American University Washington College of Law. "We're close to a peak of partisan wrangling in Washington.... We all believed you wouldn't dare filibuster a Supreme Court nominee because everyone recognized that the Supreme Court needs to do its work... That assumption may be less true than it once was."
... [I]n a strange way, two vacancies at once might actually help Obama push through at least one liberal nominee. President Ronald Reagan perfected that strategy from the conservative side in 1986 when Chief Justice Warren Burger retired. Reagan nominated William Rehnquist, then an associate justice, to move up to chief and named Antonin Scalia to replace Rehnquist as associate justice. That meant hitting the Senate with two nominations at once. The Senate could only stomach one bruising battle that summer, it appeared, so Rehnquist took the heat while Scalia, who arguably should have troubled Democrats even more, sailed through without a dissenting vote.That was pre-Bork. And the game changed post-Bork. There will be no stealth appointment anymore.
... Nan Aron of the liberal Alliance for Justice struck an optimistic note. "Let's be positive," said Aron, a veteran of confirmation wars. "Two vacancies on the Court gives the president a historic opportunity to appoint justices who will begin to change the national discussion around critical issues affecting the environment, consumer protections and civil rights."Thanks for the (unnecessary) heads-up, Nan.
Lawprof Doug Berman says:
I urge Prez Obama pick more "first" types of nominees, which could involve any varied combination of gender, racial, ethnic and/or professional and personal backgrounds. I also urge him to nominate whichever "first" he thinks will make the best Justice, and to name this person as quickly as possible after a sitting Justice announces she or he is stepping down, and to urge hearings and a vote on this nominee ASAP. I believe that following this script will, for all practical purposes, prevent a filibuster no matter what the perceived politics of the nominee.Yes, be very quick! That'll stun the opposition. Perhaps Obama can, early on, do his "the time for talking is over" routine. That's worked well for him. Surely, if you nominate a couple people and don't give us time to study their background, the GOP will be lulled into honoring the tradition against using the filibuster. Absurd!