Tom Goldstein makes a depressingly convincing case that Obama will nominate Elena Kagan. In and of itself, that isn't surprising, but what is annoying is that the administration seems to believe that the vastly preferable Diane Wood could be confirmed quite easily in the current political context. Given that Kagan could be confirmed in virtually any context while big Republican gains in the Senate could make Wood a lot dicier, this doesn't make any sense.
Also not making any sense is this political justification:
The nomination of Wood does present distinct issues because abortion—which she alone of the three has been called upon to address—raises the prospect that the nomination could be used by conservatives as a rallying cry for the 2010 midterm elections, in which Democrats face the prospect of losing control of the House and thus significantly undercutting their legislative agenda.
I suppose we need another reminder that the Democratic position on abortion is the majority position. Even granting that Wood voted to strike down a couple of the regulations of abortion that (unlike the criminalization of abortion) are popular, making abortion an issue in the context of a Supreme Court nomination is likely to help the Democrats on balance, especially since Republican voters are already much better mobilized.
Certainly, the Republicans don't seem to think that their position on the constitutionality of abortion is a political winner. Far from emphasizing Sam Alito's hostility to abortion rights, his defenders generally went out of their way to obfuscate it. Indeed, I think the argument is precisely wrong; I don't think the Supreme Court nomination will be a very big factor in the midterm election no matter what, but given the lack of Democratic enthusiasm, the biggest net positive for the Republicans would be for Obama to nominate someone whom many members of the Democratic base don't like or are indifferent about.
I wonder, however, how much the abortion issue is really driving Obama's thinking here. My guess is that he just prefers Kagan on the merits, because to him Kagan's lack of opposition to the Bush administration's expansive claims of arbitrary executive power is a feature, not a bug.
--Scott Lemieux
