April 10, 2010

"The White House is now faced with a heady political calculation."

"It could invest its efforts, energy and capital in a potentially draining fight this summer over a Supreme Court nominee like Wood, who has made controversial rulings on abortion and would almost certainly face a raging firefight over her confirmation. Or it could move toward a less-controversial selection, such as Garland, in a bid to bolster its domestic agenda before this year's congressional elections. Garland has been spoken of favorably by some conservatives, and Kagan is also seen as less combustible than Wood."

Within this small pool of extremely well-qualified candidates, Obama should pick the person he thinks will do the best work for us on the Court. There will be a big fight no matter what, because there is too much to be gained from using the confirmation as a political battlefield. It's a shameful business to exclude candidates because they have had to decide abortion cases. We are impoverished if the more experienced jurists are passed over precisely because of their experience, because they have written opinions that we can read and argue about. Obama and the Democrats should have the nerve to defend the judicial decisions we call liberal.
"When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant" and committed to the law, Obama said, hailing Stevens as a justice who "has stood as an impartial guardian of the law . . . with fidelity and restraint. . . . He will turn 90 this month, but he leaves this position at the top of his game."

On paper, it would seem that this would be Obama's last chance to appoint an assertively liberal choice to replace Stevens, who emerged as the loudest voice of the court's left wing. Democrats hold a large majority in the Senate. Next year, their grip on the chamber could be much more tenuous.
I find those 2 paragraphs, taken together, pretty amusing. Was Justice Stevens a brilliant, impartial, restrained, faithful guardian of the rule of law or the loudest voice of the left wing?

ADDED: Tobin Harshaw does a great job of collecting a lot of opinion about the various frontrunners. Excerpt:
Judicial experience may not be the only intangible working against Kagan. Another may be that she’s Jewish. “Almost nobody has noticed that when Justice Stevens retires, it is entirely possible that there will be no Protestant justices on the court for the first time ever,” writes NPR’s Nina Totenberg. “Let’s face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, ‘religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company.’ And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss. … Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all of the justices were Protestant.”
This is why my money is on Wood.

51 comments:

rhhardin said...

"Well qualified" attaches to affirmative action candidates.

It acknowledges a misgiving.

Joe Giles said...

Judging from the track record, I'd say the President will appoint the most extreme person he thinks he can get away with, and then have his goons smear opponents with impunity from the start.

Despite the appearance of gentility and thin-boned stature, the man is a knife fighter.

peter hoh said...

Althouse would be a good stealth liberal pick.

PatCA said...

"Obama should pick the person he thinks will do the best work for us on the Court."

But Obama, like many presidents, has shown that he is all about his bigger agenda. He is not a pragmatist who cares about governing well or solving the issues presented to the Court--he cares about transforming America into a leftist state.

peter hoh said...

Joe Giles, how about you make a short list of the most extreme nominees.

No fair waiting until the nominee is announced to declare that he or she is the most extreme.

Carol_Herman said...

The bamster THRIVES on self-started political chaos. That's how he stuck it out for his health care. And, Pelosi used the Trojan Horse of Stupak, to make it seem that the right was only interested in waving back abortion. Which happens to be legal.

Fights before? Bork didn't make it. And, all the people who got the "consent" nod, didn't appear radical.

Also, there's Lui. Which would give the Stevens seat to a Chinese man. Well, that would be a "slant" on affirmative action, as well.

That there will be a fight? Sure. The bamster enjoys pitting the cruel world against the social conservatives.

Just another Trojan Horse coming down the pike. Why? Because to win elections you need the middle. And, the middle isn't rabid. Signs of the fetus, ahead? You bet. And, good luck.

Irene said...

"I find those 2 paragraphs, taken together, pretty amusing. Was Justice Stevens a brilliant, impartial, restrained, faithful guardian of the rule of law or the loudest voice of the left wing?"

Those two paragraphs might be reconcilable. Someone with a assertive "left-wing" posture might believe that the liberal voice speaks the truth. A proponent of that viewpoint would argue that truth therefore resides in the "brilliant, impartial, [and] restrained" rule of law.

HDHouse said...

PatCA said...
"He is not a pragmatist who cares about governing well or solving the issues presented to the Court--he cares about transforming America into a leftist state."

As opposed to what? A state run by and for the upper crust? Or do you mean that you'll only be happy if he satisfies you and not the majority who elected him and accepted his ideas and goals? You are then going for minority rule right? Or do you just want rightwing rule..is that less threatening to you.

This constant sulking and spite from the right wing does nothing. You lost. Deal with it until you win.

somefeller said...

While I'd love to see Wood get on the Court for ideological reasons (she's probably the most liberal of the top three) and because I'd like to see someone from the University of Texas Law School on the Court (even though I didn't go there and went to Kagan's former fiefdom), Obama should probably go with Garland or Kagan. Both are strong choices that would probably provide fewer fireworks, with Garland having the benefit of some prosecutorial experience, which is good both from a political and policy standpoint. On the other hand, if Kagan gets the nod, I can tell people I've been to a couple of parties with a Supreme Court Justice, which is good small talk.

But in any case, anyone Obama picks is going to be called an extreme leftist by some people in the peanut gallery, so he should go with the one he's most comfortable with and simply move full steam ahead.

New "Hussein" Ham said...

"Obama should pick the person he thinks will do the best work for us on the Court."

By "us" I assume you mean "Americans."

Because he has no intention of functioning that way.

Barack Obama is not interested in finding the best person to secure the rights granted Americans by the Constitution.

He will look for someone who has a history on previous courts of removing and restricting those rights.

He is seeking a judge who will work with him in the Executive Branch to defeat the Legislative Branch.

Obama seeks to co-opt and corrupt the Supreme Court. And he will most likely succeed with the supine Republicrats who infest the Senate Judiciary Committee.

A pox on all their houses.

JAL said...

@ Althouse post Within this small pool of extremely well-qualified candidates, Obama should pick the person he thinks will do the best work for us on the Court.

Sigh.

The Professor has a compartment in her brain which holds onto the idea that the things this president "thinks will do the best work for us" means something like, "the best work for us."

Color me not just skeptical, but disbelieving.

I sincerely, truly, do believe that based on his own verbiage, President Obama does not like why and how the United States of America established ourselves. (And definitely not how we have conducted ourselves.)

In his version of history, our Constitution is a defective document which can be overlooked instead of upheld when it does not address the issues that he and Frank Marshall Davis and others representing "workers" and revolutionaries feel that it SHOULD have (damned stupid framers).

I know this: What /who President Obama thinks will best work for HIM on the Supreme Court is what he is aiming for. Not "us."

"Us" are the people in flyover country. Some us cling to some combination of guns, religion, small government, less regulation, desire to take responsibility, no nannies for adults, and/or Atlas Shrugged.

This is after all, a guy who didn't know the difference between the intro to the Constitution and the Declaration of Independence.

And him a con law "lecturer." Not to mention President of the United States of America.

So no. I don't trust him to pick someone who will do the "best work for us."

His record (that which can be discovered), sucks in this regard.

New "Hussein" Ham said...

"But in any case, anyone Obama picks is going to be called an extreme leftist by some people in the peanut gallery ..."

No chance that person will actually, you know, be an extreme leftist?

Is there something wrong with being an extreme leftist?

You seem to want to distance yourself from extreme leftists. Why is that? Are extreme leftists not entitled to their opinions?

Why are you bashing leftists? The Left has a storied history in America. What are you ashamed of, somefeller?

PatCA said...

HD,
Give us your definition of "upper crust," if you have one. Or is the upper crust just your demonized group du jour?

c3 said...

well he did say he was willing to be a one-termer. The question would be whether he wants to also threaten his majorities in Congress.

So I guess it will a summer about "abortion"?

AllenS said...

What constitutes "upper crust" to HDHouse (notice that he is using upper case letters now) is anything that is above his belt line.

SteveR said...

They will bait Republicans into going too far in opposition and the Republicans will likely take it. This pick will make no difference that can't be overcome with a steady focus on the things which can win elections.

Just because Democrats pay no price for opposing fully qualified nominees from Republican presidents doesn't mean the same thing applies here.

The Drill SGT said...

I'd be happier if it isn't Kagan. Based on her work at Harvard to keep the military from being able to recruit there.

I also opposed her nomination as SG. I don't think somebody who led the resistance and lawsuit against the previous adminstration and its SG in court is the best fit for that job.

Trooper York said...

Upper crust is what you find on the top of hd's Depends every morning when the home care attendant comes to hose him down.

PatCA said...

Eeuuw, Trooper, LOL!

Too bad Rev. Wright is not a lawyer. He would be the perfect Protestant pick!

Allan said...

"Kagan is also seen as less combustible than Wood."

Of course. That's why people use wood in their fireplaces :--).

victoria said...

I think it will be Kagan.No one better qualified, more respected or easier to get through confirmation. If it can't be Kim Wardlaw, she is the next best.
No reason for him to pick anyone other than a "liberal" or an "activist" judge. These are pejoratives used to dismiss a jurist who actually thinks and doesn't follow the constitution the way it was written almost 3 centuries ago.
Go Elena!!!

Vicki from Pasadena

victoria said...

Obama won, gets his picks. To filibuster someone as obviously qualified as Kagan will do NOTHING for the right wing except show people how nutty and out of step they are with the real world.

Vicki from Pasadena

Kirby Olson said...

Protestant could mean anything from Episcopalian to Southern Baptist.

What KIND of Protestant is Wood?

does she actually attend a church?

I liked the sentence that says that Wood is combustible. Someone was yucking it up when they wrote that.

Allan said...

"Protestant could mean anything from Episcopalian to Southern Baptist.

"What KIND of Protestant is Wood?"

It's an ethnic thing.

Cedarford said...

"victoria said...
Obama won, gets his picks. To filibuster someone as obviously qualified as Kagan will do NOTHING for the right wing except show people how nutty and out of step they are with the real world."

I think "the real world" - meaning the public and the Senate, are going to have some real problems with Kagan's anti-military positions as provost at Harvard. And with her advocacy that hate speech is criminal or should be criminal and only really resides in white Christians. And when short of criminal, in the purvue of univesities to decide what is tolerable attacks on others to advance identity politics and progresivism - and what speech must be justly suppressed as reactionary and victimizing to female scientists, etc...

Joe Giles said...

"These are pejoratives used to dismiss a jurist who actually thinks and doesn't follow the constitution the way it was written almost 3 centuries ago."

Yes, parts of it were written at the founding of the country. Other parts, quite more recently.

Perhaps not as much "thinking" is required to analyze the recent amendments.

Roger J. said...
This comment has been removed by the author.
Roger J. said...

My take: we are going to get a liberal, if for no other reason than the evolving meme that one picks SCOTUS nominees to maintain some sort of ideological "balance." The politics as to how this plays out should be very interesting during the dog days of August. Certainly time to laying in a stock of popcorn.

My best wish is that the confirmation hearings will reduce the Senate's ability to conduct their other legislative activities, and as the fall campaign season starts, the honorable members will be anxious to get home and campaign.

Rialby said...

This whole talk about Protestanism is nonsensical. Look at the mainline churches - they're just fronts for ACLU and Amnesty International Progressives. They care less about Christianity than they do checking all the right boxes on their secular humanist scorecards.

Gary Rosen said...

"hate speech is criminal or should be criminal and only really resides in white Christians."

You mean like "ball-licking Christian Zionists"?

By the way, Fudd, some of your recent posts railing against Reagan and corporations sound positively Bolshevist. Your mama musta had a yid in the woodpile along with the rest of the gang.

roesch-voltaire said...

I don't think Sonia Sotomayor has proved, so far, to be one trying to undermine our constitution, and I suspect his next pick- Kagen perhaps--represents no threat to the constitution. The exaggerated claims about Obama's plans ( as though he alone gets to determine this when indeed it is voted upon by the Senate) to co-opt and corrupt the Supreme Court seems just so much ideological spew.

gk1 said...

Its interesting the over riding narrative of this pick is obama and the democrats are tired and a little scared after ramming obamacare down our throats. I hope obama goes full monty and goes for a full blown liberal just to insure we don't have to put up with dirt bag democratic presidents for the next generation. Obama's already driven off the cliff, why take the foot off the gas pedal?

Joe Giles said...

"I don't think Sonia Sotomayor has proved, so far, to be one trying to undermine our constitution, and I suspect his next pick- Kagen perhaps--represents no threat to the constitution. The exaggerated claims about Obama's plans ( as though he alone gets to determine this when indeed it is voted upon by the Senate) to co-opt and corrupt the Supreme Court seems just so much ideological spew."

Two thoughts:

1. It's early. Time will tell.

2. Look at what Sotomayor said before/after nomination. By the time she was approved by the Senate, she had completely repudiated everything the President had said about SC justices. Some were even joking that he should pull her nomination since they disagreed so much.

eve said...

I think Wood. There is no greater belief amongst the progressives than in the right of women to have abortions. Period. They wouldn't swap it for world peace, cap and trade, the unionization of all workers and total gun control.

somefeller said...

This is why my money is on Wood.

Bring the Wood!

Bruce Hayden said...

Kagan is likely out because of her religion. A 6-3 Catholic/Jewish split in the Court with a majority of the citizens being likely Protestant or a derivative thereof is just not going to fly. She is also the SG, and has already argued some controversial positions in the SCOTUS.

I also think that Wood is out because of her opinion in Justice v. Town of Cicero, 577 F.3d 768 (7th Cir., Aug. 14, 2009). Regardless of the merits, she authored the opinion that arguably ignored Heller. The last thing that the Democrats need right now is a litmus test on gun control versus the 2nd Amendment. I see her being radioactive, esp. for Democratic Senators running for reelection in states with a strong gun culture (and, yes, that very definitely includes Harry Reid, who was meeting with the NRA at a shooting range in Las Vegas, while the tea partiers were down the road in Searchlight a week or so ago).

Irene said...

I also think Wood.

Despite the three husbands.

Saint Croix said...

The best nominees have a respect for words and language. They seek to understand and follow the law. The more respect a nominee has for words, the more you can count on him to follow his oath and follow the words in the Constitution. The bad jurists show themselves by their disdain for language.

Hugo Black is the standard. That's who you want. On the liberal side, the closest to Hugo Black is probably Akhil Amar or James Boyd White. Either of them would be awesome. I think Nat Hentoff would be really good, actually. I think Alan Dershowitz would be good, too. On the right, it would be people like Alex Kozinski, Frank Easterbrook, Eugene Volokh, Michael McConnell. Free speech is a good proxy for a good jurist. Not always a good proxy--Althouse would kill the unborn and send religious people to jail--but it's not bad. Althouse would be better than a lot I could name. Tribe would be bad, Mackinnon would be a disaster. Abortion is a good test for how dishonest you are about the Constitution. Free speech is a good test for fascist tendencies.

traditionalguy said...

This handicapping the potential nominee should be done on ESPN. Their announcers and commentators have more experience in entertaining us with speculation spoken as a known certainty according to inside sources.

Kirby Olson said...

Because of the three husbands!

It's odd, she's listed at Wikipedia simply as "a Protestant."

That's hilarious. There are at least 900 different denominations within that moniker.

Huge difference between a 7th Day Adventist and a Unitarian.

some of the leading Protestant churches are just front organizations for the ACLU, some aren't.

Missouri Synod has 4.5 million members, but doesn't allow women to be ordained.

For example.

No Baptist church that I know of would countenance abortions.

Episcopalians don't want to be considered Protestant.

That hugely broad term, "Protestant," is rather hilarious.

It's like saying that someone is from the planet earth without differentiating further. It says and means little more than that.

Protestants are all over the place theologically and geographically.

Kirby Olson said...

Hopefully, she belongs to a church that has a Reverend Wright at the helm. That will be quite amusing. Maybe she actually goes to Obama's church. If she's Protestant, then what church does she attend? It should be something easy to find out. It's curious that it isn't.

It's like there's an area of silence around it. Which means something, but what?

Gary Rosen said...

Totally agreed, Kirby. People are interested mainly in the judicial history and views of the nominee and their nominal religious background is only a curiosity. If you are an evangelical Protestant opposed to abortion, who would you rather have on the court - a devout Catholic or a Unitarian? I suspect most people don't even know that Breyer is Jewish and except for the panty-shitting C-fudds of the world they would shrug their shoulders and say "Oh really?" when appraised of that fact.

dick said...

Interesting to compare the approach to approving SCOTUS appointments by the 2 parties. When you see that Bork was strongly opposed by the dems as was Clarence Thomas and you see that Ginsberg and Breyer were easily approved by the Republicans even with Ginsberg being so strongly liberal with no opposition, then it makes me believe that the MSM is just trying to label any opposition before it even happens at all. It is the Dems who have made the approval process so incendiary and Teddy, PBUH, who was the worst.

tim maguire said...

I've always considered Stevens to be the weakest link in the Supreme Court chain. I don't think I've ever read a Stevens opinion without laughing out loud at least once.

He is the loudest liberal voice, which is precisely why Obama hailed him as an impartial guardian. That's how the liberal mind works.

As for Stevens' replacement, I expect Obama will expend whatever political capital he needs to to get his choice--that's what he did with health care, his only real legislative victory.

Ralph L said...

It will be "someone who, like Justice Stevens, knows that in a democracy special interests should not be able to drown out" the public's interest.
The simple concept of free speech for everyone seems to be alien to Obama.

jpr9954 said...

I think the one constant in any replacement that Obama picks for Justice Stevens is that they will suck on the Second Amendment. Dave Kopel has looked at the records of both Garland and Wood over on the Volokh Conspiracy. Neither inspires much faith that they understand the meaning of the word "infringed".

themightypuck said...

There will be a filibuster on any candidate if said filibuster can be achieved. The question isn't whether the Republicans have the stones to filibuster. It is whether Brown, Collins and Snowe want in.

themightypuck said...

The other thing is what if Ginsburg's health deteriorates and Obama gets another pick down the road? Prudence suggests Obama keep his most appealing to conservatives choice in the on deck circle and make his first move a bit but not too much to the left. There's a lot of behind the scenes stuff that might skew things one way or another. He might owe favors. He might trust someone more than others for personal reasons. How often does a POTUS get to pick for the SCOTUS right before a midterm?

Kirk Parker said...

"I think Nat Hentoff would be really good, actually."

Wow, now there's some outside-the-box thinking. I agree that Hentoff might do a good job as justice, but isn't he a bit old?

Allan said...

The other thing about Hentoff (besides being over 80 years old) is that he isn't a lawyer.

HDHouse said...

PatCA said...
HD,
Give us your definition of "upper crust," if you have one. Or is the upper crust just your demonized group du jour?"

don't play the pitiful "put upon" with me. that 1% who benefited from the recession would be one part of the crust. the other would be business as usual republicans who have about as much use for the middle class as a cat with a mouse.

when i think of upper crust Pat, i think of birds...of which there are only two kinds: raptors and prey.