The right has been telegraphing that they intend to filibuster whomever is nominated to replace Justice John Paul Stevens, regardless of qualification. Over the weekend, Sen. Jon Kyl pulled back a little bit, saying the filibuster would only be used in "extraordinary circumstances." Sen. Orrin Hatch is singing much the same tune.
Maybe I'm a bit jaded by the last year of the president's private-insurance-preserving health-care reform plan being touted as the end of capitalism, but it seems to me that what constitutes "extraordinary circumstances" for the GOP is likely to be a very low bar. The GOP's understanding of what meets the standard of "extraordinary circumstances" is likely to be capricious and arbitrary, dependent solely on what the party sees as being in its political interest. Bill Kristol seems to have developed a certain amount of affection for Solicitor General Elena Kagan because of her right-wing views on national security, but Sonia Sotomayor was no radical liberal either, and there's no reason to read Kristol's endorsement as evidence that a Kagan nomination would be a smooth ride, especially since she's never been a judge.
Even if Kagan did get a smooth ride, there would certainly be a bitter irony in replacing Stevens, who was the most passionate defender of civil liberties on the court, with someone who likely agrees more with Republicans on such issues when it comes to national security. The White House should chose a judge who matches Stevens' intellectual strength, not base their choice on the ever-shifting standards of an opposition party that likely won't support the eventual nominee under any circumstances.
-- A. Serwer
