A Supreme Court Prediction

Barack Obama has made two appointments to the Supreme Court, both of which involved replacing reliably liberal justices (Souter and Stevens) with presumably liberal justices (Sotomayor and Kagan). If Obama is re-elected, there's a fair chance he'll get at least one one more appointment. Four of the justices are in their 70s, and you never know when one might get ill or just decide that enough is enough.

So here's my prediction: If Obama wins a second term, and one of the five conservative justices on the Supreme Court retires, Republicans will, for the first time, insist publicly that the president absolutely, positively must appoint a justice who reflects the ideology of the person s/he is replacing.

That no one has argued this before will be irrelevant, as will Republicans' own satisfaction with appointments like Clarence Thomas, one of the most conservative justices in history, replacing Thurgood Marshall, one of the most liberal. Republican senators, legal eagles, and commentators will thunder that appointing someone who reflects Obama's own views is an unconscionable power grab on the part of this socialist big-government usurper, and the only way to avoid tearing this country asunder and making a mockery of the rule of law is appoint a conservative. Mark my words.

How will Obama respond? The easy answer is that he'll meet them in the middle by appointing a moderate, leaving Democrats steaming and Republicans unappeased. But who knows?

Comments

If one of the reactionary justices dies/retires and Obama nominates a mainstream liberal leaning replacement, can the Republicans just filibuster the appointment forever? If possible, what if Obama caves (don't be tricked by renewed campaign mode, he always caves), withdraws the center-left candidate for a center-center or center-right (but not nearly reactionary enough for the GOP) candidate. Can the GOP get away with filibustering a second nominee?

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