March 1, 2016

"Who wants to be Obama’s judicial kamikaze pilot?"

Nice column title — for Marc A. Thiessen in The Washington Post. Of course, it assumes Obama's nominee will not make it, and I'm not convinced of that. Nevertheless, it's a risk to be the person who gets thrown out there to the beasts in the political arena. But you may get through it, and if you do, you're there for life, just like Clarence Thomas, who survived a more vicious thrashing than anything that could plausibly happen to this new character. 

The reason I think the nominee might make it is that Donald Trump is the likely GOP candidate for President, and he can't be trusted to nominate a truly conservative person. Efforts at getting a reliably conservative Justice often fail anyway, and I don't expect Trump even to want a hard-core Thomas/Scalia-type conservative. Trump isn't opposed to abortion rights and gay rights and the rest of the things that torment social conservatives. That's my reading. I could be wrong. But my point is: The Senators, thinking about how they want to play out their roles in the Theater of Confirmation, should be able to predict — if and when Trump becomes the Republican nominee — that the next President isn't going to give them an old-time conservative. It doesn't matter who wins the election — Hillary or Trump — there's no one to hold out for.

The GOP Senators should be looking at: 1. The political benefit to be squeezed out of the drama of wielding the confirmation power, and 2. Who Obama actually nominates. Obama may pick someone moderate, because he predicts the GOP Senators will figure out that it's in their interest to take that person and to look good exercising their role in a dignified, elevated fashion. But Obama might predict that behavior and go for someone liberal enough to trigger a bad-looking response from the GOP Senators. What does Obama want more — another person of his choosing on the Court or to muck up the GOP in the fall elections?

That's how I'm thinking. Thiessan, by contrast, thinks that anyone who accepts the nomination is committing career suicide by serving as "Obama’s pawn in an unwinnable fight." Thiessan is obviously in the game himself. I think I'm looking at the chessboard from a more distanced position and seeing quite a few moves and many different outcomes — including the one where a failed nominee gains stature and goes on to write and comment on the legal/political scene in a vigorous, rewarding post-nomination career.

50 comments:

Gahrie said...

t a hard-core Thomas/Scalia-type conservative.

If you describe Thomas and Scalia as "hard-core Conservatives" how the hell do you describe RBG?

Bob Boyd said...

Professor Althouse, if Obama asked you to be his nominee, would you?

Bob Ellison said...

Bork would've won without that god-awful beard.

Brando said...

I would agree with you that if the general election nears and the GOP looks likely to lose the Senate and Trump looks likely to lose to Hillary, the GOP will confirm a moderate nominee, except for one thing--McConnell and company know that their critics in the conservative base already don't trust them, and won't be thinking in terms of chess moves and least-bad alternatives. Much like the shutdown fight, they will be forced into not confirming anyone this year.

David Begley said...

Nominate Judge Judy. Historic.

Bushman of the Kohlrabi said...

What does Obama want more — another person of his choosing on the Court or to muck up the GOP in the fall elections?

I don't believe there is anyone of Obama's "choosing" that would qualify as moderate so put me down in the "muck up" column. Besides, fighting the GOP is the only thing that gets the Bamster's blood flowing.

Brando said...

"If you describe Thomas and Scalia as "hard-core Conservatives" how the hell do you describe RBG?"

Hard core liberal. Ask yourself when the Obamacare rulings were about to come down, did you have any doubt how RBG and Scalia would have voted?

Roberts and Kennedy are less predictable.

Ann Althouse said...

"Professor Althouse, if Obama asked you to be his nominee, would you?"

First of all, there is no way in hell any President would ever nominate me. I'd have to imagine myself being a completely different kind of person. If that leap were possible, the answer would be yes.

traditionalguy said...

Who wants to be the dead nominee walking? It would need to be a politican and not a real lawyer. That opens it up to every race and gender identity combo ever seen.

hawkeyedjb said...

I predict Obama will nominate a hard-left candidate who represents one or more identity groups; a female of color, most likely. She will be ignored by the Senate, but not by Hillary Clinton, who will promise to re-nominate her as soon as she is sworn in. The nominee's politics won't be as important to the targeted voters as the fact that she represents the aggrieved groups.

Ann Althouse said...

"Who wants to be the dead nominee walking? It would need to be a politican and not a real lawyer. That opens it up to every race and gender identity combo ever seen."

No. It could be someone very centered in legal interpretation, such as a constitutional law professor. You would stand your ground, be exactly what you are, and say what the nominees always say, whether they are genuine or phony, that they'll follow the law earnestly. Their career will vouch for their earnestness and their knowledge and brilliance will get them through it. They'll just be super-smart and super-clean and let the political actors do whatever they want. Let the chips fall where they may, and you either end up on the Court or you continue on the path where you already are -- as a conlawprof or an appellate court judge. You'll have new luster, new stature. Just play it straight. I don't see that it's so hard. Don't do it if you have any impurities in your life story, but other than that, go for it.

Jack Wayne said...

And there's the other possibility: that Trump nominates a Harriet Meirs and that pick is rejected by the Republicans. So Trump is forced to pick someone they choose.

tim in vermont said...

Why should Obama nominate anybody he expects to get confirmed? Just wait. That would be my counsel. To the Republicans I would say, can we get that Nevada Governor back?

From what I can see, Trump is the central casting candidate it would take to get Hillary elected. Everybody always overplays their hands. That's why the Democrats are facing irrelevance if they lose this election, and why the Republicans are throwing away an all but certain win over Hillary the Awful.

Ann Althouse said...

Obama's idea will be, I assume, to pick someone so good that opponents will look bad opposing him/her. Whoever is picked will know that's the role to be played. So what if it ends in defeat?

Ann Althouse said...

It's conservatives who are hyperventilating about how it's career suicide.

I don't like all this death imagery, by the way. It's ugly. Conservatives are already making themselves look ugly. Is that some sort of compulsion for you guys?

MayBee said...

" I think I'm looking at the chessboard from a more distanced position"

I enjoy your blog so much, but I wish you would drop this particular vision of yourself, at least in your writing

MayBee said...

Show, don't tell, I say.

Curious George said...

"Obama may pick someone moderate..."

Not a chance.

Bushman of the Kohlrabi said...
This comment has been removed by the author.
Brando said...

"From what I can see, Trump is the central casting candidate it would take to get Hillary elected. Everybody always overplays their hands. That's why the Democrats are facing irrelevance if they lose this election, and why the Republicans are throwing away an all but certain win over Hillary the Awful."

If the election (both presidential and control of the Senate) look close by election day, I think nothing will move forward as no one will want to take a less-than-great deal if the election then swings their way and they'd have benefitted by waiting. But after election day, if the GOP loses the Senate and/or Hillary wins, I expect a deal to be made quick. Obama will want his own pick, rather than letting Hillary get one, and the GOP will be happy to take a moderate over whatever alternative they face in the new Congress.

Bob Boyd said...

Suppose Obama nominates a marginally acceptable moderate. Could the Senate wait until after the election, then, if they lose the Senate or the Presidency, go ahead and confirm the nominee, but if they keep the Senate and win the Presidency, reject the nominee or just let the nomination die of neglect?

tim in vermont said...

I enjoy your blog so much, but I wish you would drop this particular vision of yourself, at least in your writing

It makes sense to me what she is saying. Not sure how else you would say it.


Conservatives are already making themselves look ugly. Is that some sort of compulsion for you guys?

It is almost a good working definition for conservative to say he is someone insufficiently sensitive to social pressure.

Bob Boyd said...

If Obama nominates another progressive, that could be used against the Democrats in the election as effectively as refusal to consider a moderate could be used against Republicans.

Bob Ellison said...

tim in vermont said, "It is almost a good working definition for conservative to say he is someone insufficiently sensitive to social pressure."

Well said. When I was in college, we few rightists were highly conscious of the vast majority of students and, even more so, teachers arrayed against our philosophies. That made us tougher, and we won most debates, even though we were out-numbered.

If you know what's correct, you gotta be tough. That starts with self-assurance.

Hagar said...

Sacrificial lamb will probably be more like it.
Given Obama's record, it is not likely that he will play it straight, but will try something that is too clever by half, as the Brits would say.

Brando said...

"Suppose Obama nominates a marginally acceptable moderate. Could the Senate wait until after the election, then, if they lose the Senate or the Presidency, go ahead and confirm the nominee, but if they keep the Senate and win the Presidency, reject the nominee or just let the nomination die of neglect?"

I believe they could, but Obama could withdraw the nominee before they had a chance to do that.

"If Obama nominates another progressive, that could be used against the Democrats in the election as effectively as refusal to consider a moderate could be used against Republicans."

That's why I think he'd nominate a moderate. It's hard to gin up the GOP over Obama putting a moderate on the bench, and for Obama it would still be a "win" because it'd be replacing a reliably conservative justice. Dems would still try to use GOP refusal to vote on it as proof they are unreasonable, and it'd be a wedge issue against purple/blue state GOP candidates.

Chuck said...

To appoint another Scalia, it would require a president to expend political capital. There would be a horrendous filibuster-inducing fight. And maybe even a "nuclear option" extension of the no-filibuster rule.

A President Trump (lol) would almost certainly not do that. Because Trump would be using what little political capital that he had (and he'd have damn little, without much institutional Republican support) to pursue border walls and CBP funding. And protectionist trade bullshit.

So yeah, I think professor Althouse is right (in addition to the things she cites, which call into question Trump's credentials as a conservative Republican).

Reasons Number 1,126 and 1,127 to work to deny the nomination to Trump.

Ignorance is Bliss said...

The Senators, thinking about how they want to play out their roles in the Theater of Confirmation, should be able to predict — if and when Trump becomes the Republican nominee — that the next President isn't going to give them an old-time conservative. It doesn't matter who wins the election — Hillary or Trump — there's no one to hold out for.

I disagree. If Trump is the nominee, and they think he has a chance to win, then they should hold out for his Supreme Court pick. You are right, Trump has no interest in a conservative pick. But he makes deals. So the Senate could advise him to pick a conservative, in exchange for supporting other parts of Trump's agenda. Or the Senate could agree to a moderate Supreme Court pick, in exchange for Trump supporting more of their legislative agenda. Either way, they are in a better position if it is Trump making the pick.

( Of course, that all depends on their holding out not swinging the election in favor of a Democrat President or Senate. )

mccullough said...

The Republicans want to keep the Senate, keep getting re-elected, and keep fundraising. 20 Republican Senators are running for re-election, some in safe seats and some in IL, NH, and WI. Rubio and Coats are retiring from the Senate. There are 32 other GOP senators.

It's one thing to disclaim Trump. It's another to support Obama. Plus, Trump will overshadow Obama throughout the year. There are t enough votes to get Obama's nominee through.

Gahrie said...

I don't like all this death imagery, by the way. It's ugly. Conservatives are already making themselves look ugly. Is that some sort of compulsion for you guys?

Repeal the 19th Amendment

James Pawlak said...

The GOP Senators should consider any nominee sent to them by our "Glorious Leader" AND then apply the Democrat developed "Robert Bork Rules".

elkh1 said...

Don't worry, Republicans will posture for the base for a little while, then keel over to confirm the black woman. After all Black Lives Matter, racist-sexist Republicans fight their War on Women in the dark.

HoodlumDoodlum said...
This comment has been removed by the author.
bgates said...

I don't like all this death imagery, by the way. It's ugly.

Civility bullshit.

Bob Ellison said...

Michelle Obama is the perfect pick. Come on, Barry, just do it!

HoodlumDoodlum said...

The line between civility bullshit a d ugliness is so, so fine.
Personally I thought the "Robert Bork's America" Kennedy speech is about as ugly as it comes, but Kennedy remains a revered figure and Bork is a verb, so what do I know?

traditionalguy said...

OK, a Con Law Professor con. But not a real lawyer with a career to abandon for a con.

That former President of Mexico guy could be a great nominee. He could promise to clean up his language and not curse in Spanish, and the Hispanic voters will all cheer Obama.

mccullough said...

Teddy was a drunk coward who left a woman to drown. Any just legal system would have charged him with reckless homicide. Any institution with self respect would have expelled him. And any voter who was civic minded would have voted him out.

But Dems lecture everyone about Donald Trump

mccullough said...

There aren't many Con Law cases at the Supreme Court. And the ones they take, any educated adult could just vote your preference on the issue and make shit up like the gay marriage ruling. It helps to have someone with federal judicial experience because a lot of the cases are about federal statutes and regulations that are important to the economy but that the average voter and con law professor doesn't know or care about. As Scalia once remarked about the uselessness of con law professors, "The philosopher kings don't read the tax code."

Eric the Fruit Bat said...

Instead of "kamikaze pilot" I'd have gone with "9-11 hijacker" but that's pretty much why I don't get paid the big bucks.

Mike said...

C'mon Hoodlum you know "ugly speech" like unamericanism is an epithet that only flies from left to right. Sure the Left claims routinely that Republicans want to "starve the poor, kill the old, drive abortionists into back alleys, and spend unlimited sums on campaigns." But that's not ugly speech that tarnishes the whole Left-Dem-Progressive scene anymore than their support of slavery, euthanasia, internment camps, the KKK, Jim Crow, filibustering Civil Rights, and outlawing speech that disagrees with their POV does.

Obviously Republicans have trouble with satisfying the likes of Althouse.

Danno said...

Ann Althouse said, I don't like all this death imagery, by the way. It's ugly. Conservatives are already making themselves look ugly. Is that some sort of compulsion for you guys?

Marc Thiessen doesn't speak for conservatives any more than David Duke speaks for Trump, or directing it back to you, any more than Laslo speaks for you. There are lots of pundits out there. Trying to control pundits would seem to be like herding cats!

Kristian Holvoet said...

"Of course, it assumes Obama's nominee will not make it, and I'm not convinced of that." Then he better get on it and nominate someone. The longer before the process really begins, then the less likely it will be completed. Of course, if he waits until several of the Republican senators drop out, he might have a slightly improved chance. But I doubt it.

Tom said...

If I were Obama, I would nominate a moderate republican. If I were the GOP senate, I'd immediately confirm. Because, if I'm Obama and I nominate a moderate republican, I'm going to find an issue with that candidate in the hearings and withdraw them and propose a much more liberal alternative. The GOP wouldn't be able to argue the principled position that presidents don't get make appointments they're last year because they were willing to consider one they liked. As you said, lots and lots of chess moves.

Tom said...

Of course, if I were Obama, I'd also appoint Pope Francis.

cubanbob said...

There is no reason for Obama too embarrass himself with a nominee that is DOA and there is no reason for the Republican's to confirm anyone who isn't acceptable to conservatives. The country can manage just fine with eight justices until next year.

Amanda said...

Obama will probably nominate someone moderate knowing that the Senate will just dig their heels in even further and continue to obstruct. Democrats win even when they lose in this obstructionist mode the Senate is in. The Republcan Senate looks mean, small and scared. Democratic voters will be motivated to come out to vote even more.

Jonathan Graehl said...

Trump, knowing all this, can+should credibly promise a nominee more to GOP's liking. Having whoever it is come from a GOP president would be a feather for conservative caps.

Althouse would be Obama's kamikaze lamb if she's asked, wouldn't she?

Jonathan Graehl said...

*were asked (tense quibble)

Amanda, that would be my first read also - sorry to have been dismissive earlier.

Fritz said...

Speaking of death images, Viacom spokesman proposes to smother Trump with Scalia's pillow.

http://twitchy.com/2016/03/01/larry-wilmore-fantasizes-about-killing-donald-trump-with-antonin-scalias-pillow/

But yes, it's always the conservatives.