After noting the remarkable lengths Republicans went to in order to hold up Obama's appointment of moderate David Hamilton to the Seventh Circuit Court of Appeals, David Fontana asks two excellent questions:
The lesson here for Obama is simple: If Republicans are going to obstruct even moderate nominees, and if Senate Democrats are sometimes going to have to break filibusters to stop them, then why keep appointing generally moderate judges meant to appeal to Republicans? Why not try to put your own philosophical stamp on the courts?
I'm generally wary of the idea that Congress would magically start generating better policy if Obama would just become more uncompromising. But with respect to judicial appointments, Obama's preemptive concessions really have been counterproductive. It's not at all surprising that his attempts to put forward moderate appointments is not working -- after all, we're dealing with conservatives willing to claim that Cass Sunstein is a wide-eyed radical.
And, what's worse, putting forward moderate nominees will continue the asymmetry in which Republican presidents take the ideological direction of the federal courts very seriously while Democratic presidents are willing to settle for moderates to focus on other priorities. There's no reason to continue this. Given that Republicans will portray anyone to the left of Anthony Kennedy as a lawless Trotskyite, Obama needs to make stronger liberal appointments and accept that not everyone will get confirmed.