Monday, April 05, 2010

As Master Rahm was just telling us at DWT about that next Supreme Court pick . . .


Justice John Paul Stevens -- a tough act to follow

"The complication here is that Stevens is the conscience of the court's liberal wing, and space he occupies now is not a space that any nominee simply fills. So growth capacity -- the potential to grow into a Stevens -- will factor in, too."
-- Marc Ambinder, in an blogpost today,

by Ken

Well, no wonder Mr. Ambinder is regarded as such a wise political sage! So, the president's not looking for a fight with his next Supreme Court pick, eh? I don't know whether to say "Gosh!" or "Golly!" 'Cause as we all know, looking for fights is what this administration is all about. (For the record, this is sarcastic, but even if you think of all the fights he's managed to find himself in with those of us to his political left, he hasn't really picked fights so much as he and his red-baiting buddy Master Rahm have goaded us into picking the fights.)

Happily, Mr. Ambinder isn't claiming any special knowledge, though when he notes that he, unlike Business Week (which cites "a White House official familiar with the deliberations" as the source for its list of three candidates who it claims are currently the subject of White House focus), hasn't had any names leaked to him, there does seem to be a note of indignation.

Business Week's three names, by the way, are: "U.S. Solicitor General Elena Kagan and federal appellate judges Diane Wood and Merrick Garland."

As it happens, no one has leaked any names to us at DWT either, which is surprising, given our closeness to Master Rahm Emanuel. So we know the same things everyone else knows:

* that, especially since the administration accepted the SCOTUS nomination framework now cemented in place by Republican obstructionists with the Sotomayor nomination, the nominee has to be, or plausibly pretend to be, a by-the-book, just-read-the-law kind of decider, preferably with a much smaller paper trail than Justice Sotomayor's;

* that the Senate Republicans will raise holy hell, whoever the nominee is, and will make a maximum effort of obstruction;

* that while the Court's philosophical balance is most unlikely to change, when it comes to replacing Justice Stevens, well, you're just not going to replace Justice Stevens's legal and moral authority.

Note that I refuse to refer to Justice Stevens's position as leader of a "liberal bloc" on the Court. Can we be serious for a moment, and acknowledge that there are no liberals on the Court? Just because you're not a screaming right-wing loon hell-bent on shredding the Constitution for the greater glory of the super-rich and powerful, that doesn't make you a liberal.

I assume that for the foreseeable future no liberal can even be considered for the High Court on grounds of confirmability. And it would be fairly silly to expect President Obama, who isn't a liberal and seems to have mostly contempt for liberals, to be looking for one.

William Brennan was a liberal. Thurgood Marshall was a liberal. Whereas Steven Breyer is . . . um, has anyone figured out yet what that guy is? And with all due respect to Justices Stevens, Ginsburg, and Sotomayor, and to former Justice Souter, fine justices all, they never claimed to be, and aren't, liberals. In his recent NYT interview, Justice Stevens insisted to Adam Liptak that he's a conservative.

"“What really for me marks a conservative judge is one who doesn’t decide more than he has to in order to do his own job. Our job is to decide cases and resolve controversies. It’s not to write broad rules that may answer society’s questions at large.” (Liptak doesn't seem to have thought it worth pointing out the pointed jab at the new modus operandi of the Roberts Court, which seems to be to find cases that will enable you to rewrite constitutional law the way you want to and then decide those cases as sweepingly as you have to to achieve the desired result.)

The retirement of David Souter was hard for me, because he had come out of nowheresville to rise so serenely to the challenge of the job. I hope it's not necessary to repeat once again the circumstances of Justice Stevens's appointment, by Jerry Ford, at the recommendation of Attorney General Edward Levi. You have to know it hasn't escaped the attention of the right-wing loonies that Souter's appointment too came at the urging of a stinking Jew, New Hampshire Sen. Warren Rudman. Give the R's credit for learning from their mistakes, though -- you could hardly ask for a scummier succession of thugs than Nino Scalia, Clarence Thomas, John Roberts, and Sammy Alito. That still doesn't make Souter a liberal.

What's interesting is how differently people are interpreting these same nomination "realities." Take the issue of confirmability. It's got that stalwart Democrat, Pennsylvania Sen. Arlen Specter, so spooked, that he confided to Fox Noise his hopeJustice Stevens will stick it out another year, when perhaps the political climate won't be as poisonous. (That seems to me a dangerous assumption, and a confirmation battle in an election year strikes me as carrying risks of its own.) Whereas Ambinder seems to think that, provided the calculations are calculated properly, confirmation is no problem:
Politically, the White House wants to find an unimpeachable nominee who the American people quickly accept. Let Republicans make the noise they do and will -- which may excite their own base but won't really do much more than that -- and get the nominee confirmed quickly, and without and fuss. Kagan, Wood and Garland fit the bill.

Ambinder really earns those big pundit bucks with this divining of the administration's agenda in replacing Justice Stevens:
deally, he's looking for someone who can persuade swinger (uh, swing-ideological justice) Anthony Kennedy to change his mind on a set of issues, someone whose qualifications are beyond approach, who doesn't have a lingering paper trail of outrageous (i.e., conventionally liberal) viewpoints, and yet someone he trusts can subtly steer the court to the left. The complication here is that Stevens is the conscience of the court's liberal wing, and space he occupies now is not a space that any nominee simply fills. So growth capacity -- the potential to grow into a Stevens -- will factor in, too.

I think Justice Sotomayor was an admirable pick, but I don't think any of us kid ourselves that she is going to be, either judicially or personally, a counterweight to the "Let's get ready to rumble" loonies Scalia, Thomas, Roberts, and Alito. And now we have Master Rahm judging what potential nominees are going to grow into?

I assume he hopes they'll all grow into power-worshiping tools like Chief Justice Roberts.


I can't resist passing on this wonderful note about our pal Arlen's self-injection into the SCOTUS situation, by Michael McGough on the L.A. Times political blog:
Sen. Arlen Specter has high hopes for Supreme Court Justice John Paul Stevens
April 5, 2010 | 11:29 am

Years ago, I mentally created a file called "Who Asked Him?" in which I lodged presumptuous comments by public officials and others. I just deposited Sen. Arlen Specter's suggestion that Supreme Court Justice John Paul Stevens not retire at the end of this term, despite Stevens' own media blitz suggesting that his days, and dissents, are numbered.

Not that we asked, but Specter (D-Pa.) told Fox News that he hopes Stevens won't step down this year because "gridlock in the Senate might well produce a filibuster, which will tie up the Senate with the Supreme Court nominee." He added, apparently in a rejection of the conventional wisdom that his former Republican Party will pick up seats this year: "I think that if a year passes, there is a much better chance we can come to a consensus." To quote Specter's preferred vote in the Clinton impeachment trial, that theory is "not proven."

Cynics would suggest that Specter himself doesn't want to be tied up by a Supreme Court confirmation at a time he is seeking reelection, the first time as a Democrat. Or maybe from the viewpoint of an 80-year-old senator, a 90-year-old Supreme Court Justice is just hitting his prime.

-- Michael McGough

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At 9:22 AM, Blogger cybermome said...


While Specter should know because he contributed to the poison. I won't vote for him should he win the primary. I'd rather have Pat Toomey as the Junior Senator from PA.

At 11:44 AM, Blogger KenInNY said...

Whoa, that's a tough call! But I guess it's the one Pennsylvanians are going to face, unless some magic strikes the Sestak campaign, which seems to me to be doing everything except making headway.

Rather have Toomey, eh? Well, it's true that you'll always know where he stands, whereas with our old pal Arlen . . .

Very interesting point!



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