Monday, October 25, 2010

Walter Mondale for SCOTUS?

Over the weekend, I asked what  would happen if the Supremes have an opening in the next couple of years.  A filibuster (or outright defeat, if there are 51 Republican Senators) seems inevitable to me and most of the people who responded, summed up by commenter JazzBumpa who supposed that the GOP would filibuster Robert Bork's clone if Barack Obama sent him up. 

Nor is it really plausible that Obama would nominate someone that conservatives like.  He'd be inviting a relatively serious primary challenge (I hear Russ Feingold might be looking for something to do, and he strikes me as the kind off pol who would do it). 

The obvious compromise, suggested by commenter Kylopod, would be to pick someone old.  Would Republicans be willing to vote for Hillary Clinton (b. 1947)?  Still on the youngish side, no?  She could easily last a couple of decades on the Court.  So, here's the likely short list:

Walter Mondale, b. 1928.  At last, a Protestant!

Abner Mikva, b. 1926.  He's been confirmed before!

George Mitchell, b. 1933.  Ethnic diversity. 

Mario Cuomo, b. 1932.  Bonus attraction for the GOP: might take three or four years to decide whether to accept appointment or not.

Jerry Brown, b. 1938.  OK, he's a bit young -- but he's goofy enough that he might not be a reliable liberal vote on everything, but most liberals would still be happy, and besides if he wins then California Republicans could get rid of him.

Hey, I'm not joking -- well, except for the Jerry Brown part; I'd rather see the other Jerry Browne on the Court.  Odds are that there won't be an opening in the next couple of years, but it's hard to see any other way out of a stalemate if there is one.  And even then, I'm not sure that 41 Republicans would let anyone go, no matter how old they were. 

The larger issue is what's going to happen to the other judicial nominations.  Will Republicans simply roadblock everyone, at least at the Circuit Court level?  If so, and if Democrats maintain a small majority, will Dems threaten a nuclear option?  Will they work out a deal?  If not, would the Democrats really just end the filibuster by a simple majority vote?  What if Republicans control the Senate?  Would they even allow any nominee out of committee?

It's hard to believe that we'll just go two years without filling any judicial vacancies.  Isn't it?  But I'm finding it hard to see any incentives for Republicans to compromise.  Sure, they wouldn't want their own nominees spiked in the future -- but that's not going to cost any Senator reelection, and furnishing the winning votes to put an Obama nominee on a Court of Appeals could just do that in a primary.

12 comments:

  1. I'd kinda love Mikva on the Court, even if only for a couple years.

    But I still say the political incentives change after this election. i mean, Brown's path to victory pretty much demands that he shares votes with Obama, so he's gotta find something they agree on.

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  2. I'd like to see some hardball on this issue. Republicans get whatever they want and dems have no right to the same. If Obama wants my vote in 2012 i'm gonna have to see some stones from him for the next two years. Otherwise who cares if you have a repub or dem in the white house......the old addage that they are all alike is almost the truth.

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  3. I think nominating someone over 80 years old for such an important job should be a non starter. If I were Obama I would ask Senators Snowe or Collins if they were interested.

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  4. I think the age thing is a way to get around this. Well, if it's possible. Nominating a sitting federal judge (possibly a senior judge) seems the least controversial way to possibly get someone through, and sure, it might be possible to get someone who is 70-80 confirmed when it might not otherwise be possible. Terence Evans of the 7th would seem a leading possibility among that set. Others to look at could include Proctor Hug of the 9th, Pierre Leval of the 2nd, Harry Edwards of DC, Carolyn Dineen King of the 5th, and Robert King of the 4th. I think a politician who is already framed as very partisan wouldn't work, knocking out the likes of Cuomo and Mitchell. But maybe a less clearly partisan ex-senator would work - say, Paul Sarbanes?

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  5. I don't see the problem. No matter what, nominate a liberal.

    If one of the four leave, nominate a liberal. It doesn't change the court or its outcomes while the seat is vacant.

    If it's a conservative, nominate a liberal. The court is now divided four-four. Delay is to the benefit of Democrats.

    There are costs associated with rejecting nominees. Just put up ten very liberal justices and dare the Republicans to block them all...then offer ten more.

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  6. Obama voted against Roberts and Alito, and was in favor of filibustering Alito.

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  7. Actually, Russ Feingold would be a good nominee for Obama. Not only would he be a fantastic justice, but he's relatively young and reliably progressive. Plus his bipartisan reputation for putting principle before party insulates him from the charge that he would be a partisan on the court. Also, the Senate is a clubby place, so nominating a former Senator would make the confirmation a bit easier.

    Plus it's in Obama's advantage for purely political reasons. Feingold has been one of the administration's harshest critics from the left, particularly on national security and executive power issues. He barely toes the line as it is as a member of the Senate, but if he's not in office, he'll be completely free from any constraint that currently holds him in check from criticizing the president or the party. He'd also be free to challenge Obama in the Democratic primary. However, if he were appointed to the court, he would have the integrity and respect for the non-political office of Supreme Court Justice that he wouldn't weigh in on the issues of the day, except when they come before him as a justice. Plus, the left wing of the party would wet themselves with glee over it.

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  8. I'm finding it hard to see any incentives for Republicans to compromise.

    Well they haven't compromised on anything up to this point so why start now?

    Meanwhile, our Democrats are all about that bi-partisanshippy huggsy wuggsy feel-good party like it's the 1970s stuff. Someone please explain to me why this is? How can you go to voters for two election cycles and tell them the problem is that they don't have a filibuster proof majority so they can't get anything done -- but when voters DO give them that filibuster proof majority they go to Washington and declare they must have bipartisan legislation?

    Why is that? I'm so confused.

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  9. Well, that's not exactly what happened, though. Obama pretty explicitly campaigned on bipartisanship (As all first-termers do), and at least 10 of the new Senators since 2006 did, too (or at least promises of "independence" or "moderation"). And "voters" never gave Dems a filibuster-proof majority- Arlen Specter's (now apparently defunct) survival instincts did. Indeed, first chance they got, voters took those 60 votes away (and punished Specter, when they got that chance). Finally, a few Republicans DID vote for pretty much every major thing in the Senate besides HCR (and even that got timely assists from Snowe and Cao).

    I mean, I'm not saying Dems were as bold as the coulda/shoulda been. But it's easy to see why the tried some bipartisanship- they campaigned on it, at various points they needed it, and enough Republicans were willing to give it.

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  10. I couldn't disagree with Colby more. There are more prominent non-elected-party senior officials in our government than in any administration in decades (Gates and Bernanke are the most prominent, but there area several more in mid-range jobs) and the administration bent over backwards to please the Republicans on a lot of things, stuffing hundreds of billions of tax cuts into the stimulus, pushing a smaller stimulus, and of course playing along with Republicans on health care reform (lots of Republican ideas are in the bill, which of course got the support of a lot of traditionally Republican organizations, if not Republican politicians). I think the notion that this White House is any more partisan than the norm is simply not backed up. The Senate on the other hand has been extremely partisan in an unheard of way since the 2006 elections. The use of the rules to block almost everything is truly novel.

    As to the Feingold possibility - that'd never work. Senator or not, he's not part of "the club", he's to the left of most Democrats, and most Republicans consider Feingold's campaign finance stance to be unconstitutional. A senator might work - but it wouldn't be Feingold.

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  11. Personally, I think the era of politician-justices is long over. It more or less ended with Earl Warren (though Sandra Day O'Connor was a state senator). Pundits are always speculating about the nomination of some prominent pol, but I don't think it'll happen anytime soon. The only potential exception right now is Hillary Clinton, but even then I think it's unlikely, even if Obama did still have a filibuster-proof Senate.

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  12. Actually, I'm not sure you disagree with me at all. No where did I say that Obama/Dems WEREN'T bipartisan, or that they have uniquely partisan leadership (even in the House, Pelosi's centralized control is pretty much par for the course). I'm just saying that that bipartisanship didn't come out of nowhere- indeed, given how they campaigned and the numbers they often faced in the Senate, it was entirely predictable.

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