Somewhere deep in the psyche of Washington, hope exists that Barack Obama's first Supreme Court nomination will not return us to the rancor and bitterness unleashed by past judicial-appointment processes. It is a foolish and futile hope, but it speaks to the depth of the idealism inspired by Obama in a very fundamental way. And, frankly, there are logical reasons to be hopeful. But logic is not the currency of Supreme Court nomination fights, and this appointment process will not provide an exception.
But let's deal with why some are inclined to be optimistic. First, the president has shown no inclination to be politically confrontational. In keeping with the Obama brand, his pick is likely to be someone with impeccable legal and academic credentials and defensible moderate bona fides. Second, the right is not in danger of losing a friendly seat. One moderate-to-left justice will be replaced by a justice of a similar stripe, so conservatives may be tempted to hold their fire. Finally, nasty partisan tactics have not been so effective for Republicans recently -- reason might suggest that they would choose a different path. Not going to happen.
The bottom line is that a fight is unavoidable, and it will get as nasty as any we've seen: The current political climate allows Republicans no other option. In its ongoing self-reclamation project, the GOP will calculate that it needs this fight like its members need oxygen. Without a good struggle, the GOP will die. Republicans need to redefine what they stand for, and they must prove they can stand up to the president: An appointment process offers them a unique opportunity to do both of these things. A judicial-confirmation hearing is a culture warrior's battleground, and the Republican Party is now full of those ideological belligerents. If Republicans can't wage this fight, they are in worse shape than we thought. They just need to show they still have some fire left. It also happens that the appointment process will be the biggest fundraising opportunity Republicans will have had in a very long time.
Republicans senators have been warned not to appear too eager to support Obama's pick.
"Should you race to support the nominee before their Senate hearing, Republican voters will be far less forgiving -- all the more so if you appear to be pandering to the various identity groups that may cheer a historic nomination," advised an open letter written by Curt Levey, executive director of the conservative advocacy group Committee for Justice. Levey also warned "red and purple State" Democrats that the battle over judicial appointments is exactly the kind of issue that could bring a torrent of opposition money against them at re-election time. "While it's too early to know how much money will be spent on advertising to defeat an activist nominee," Levey wrote, "it is virtually certain that the money will be directed at red and purple state Democrats."
In some ways, Levey's threat lacks teeth. Only two Senate Democrats -- Blanche Lincoln of Arkansas and Byron Dorgan of North Dakota -- will seek re-election in 2010 in states lost by Obama, and both currently have solid re-elect numbers and plenty of money to suppress any serious challenges. Among the 16 Democratic Senate seats up next year, the issue may potentially cause trouble for only two -- Harry Reid the majority leader from Nevada and, now, Arlen Specter, whose changeling tendencies can make enemies in surprising places. But both of those guys are people who know how to finesse and fight back.
With so few strategic options available to them, Republicans will have no choice but to make this Court fight as controversial as possible, simply as a way to remind people of their existence. Levey even warned the president that his "ambitious legislative agenda," might be at risk if he did not "eschew a bitter, distracting" confirmation fight, but he also allowed that conservatives already have huge problems with all of the top candidates mentioned so far: "While we remain open to evidence to the contrary, it is our belief that potential nominees such as Sonia Sotomayor, Kathleen Sullivan, Harold Koh, and Deval Patrick are so clearly committed to judicial activism that they make a bruising battle unavoidable."
This is not the sound of a more moderate GOP moving strategically toward the center.
Meanwhile, the president appears to be trying to wish away a fight. He seems genuinely interested in avoiding the kind of skirmish that judicial nominations always involve, and which always seems to hurt Democrats. And who can blame him? Avoiding the culture wars has worked well for him so far. Part of Obama's genius thus far has been his ability to avoid those battles by simply designating them as old and irrelevant.
"On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics," Obama declared in his inaugural speech. Committed to these words, he's been making overtures to Republicans and keeping them in mind when choosing Souter's successor. Sen. Jeff Sessions, the dogged Alabaman who replaces Specter as the ranking Republican on the judiciary committee, has said that the president promised him an acceptable nominee. Over a telephone conversation this week, Obama guaranteed Sessions that he was not going to send up a liberal "bomb thrower."
The comment sounds reassuring in these gentle days of spring. But in the heat of summer, such conciliation will not matter, because Republicans will be the ones launching the grenades.
"I would expect it to be contentious," Sen. Chuck Grassley of Iowa, a Republican senior member of the Judiciary Committee, told reporters on Capitol Hill this week. "If [Obama] appoints people like Souter, or people worse than Souter, then I think you've got problems." And Grassley is one of the reasonable ones.
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