Sunday, October 24, 2010

Sunday Question for Liberals

Same question as the question for conservatives: Suppose that Republicans have at least 51 and no more than 55 Senators next year, and that a Supreme Court justice gets hit by a bus.  I'm sure liberals would all expect an automatic filibuster on any even moderately liberal nominee. Can you picture any compromise that most liberals could live with that would allow Obama to put someone on the Court?  How do you see such a confrontation playing out?


  1. The Republicans would filibuster any Obama nominee. It wouldn't matter if he, she, or it were the ideological clone of Robert Bork.

    There is no hope for compromise on any issue. Republicans are out to make Obama fail, and if the country goes down in the process, that's just collateral damage.

    The impeachment proceedings will commence one microsecond after they can muster the troops.


  2. One problem is that most liberals considered Elena Kagan to be a compromise they could live with. Obama has regularly acted as if he needed to compromise with Republicans, even when it was his party that had the majority in the Senate. I can only imagine what kind of nominee he'd come up with if he didn't have that majority. Meanwhile, as Jazzbumpa notes, the Republicans have no interest in compromise, so Obama's efforts will be wasted.

  3. I agree with Jazz & Paul. Kagan was a compromise pick, and she only got 63 votes.

    Hopefully the right wing base will pressure GOP Senators into a full nuclear option.

  4. I'm sorry,if Republicans have 51 or more, there is no filibuster. They simply vote down any Obama appointment. If you really believe Collins/Snowe would accept the primary challenge and defy their party, isn't the answer dependent on which judge gets hit? If it is one of the 4 really conservative judges, if filibuster ensues, decisions are 4-3 liberals with Kennedy only able to make it a tie, or make the decision 5-3 for the good guys; Conservatives would have great incentive to compromise if it was a Kagan-clone. Obama would even have an incentive to nominate someone more liberal and let the Rep filibuster.
    If it is one of the 4 more liberal judges, filibuster certainly. Even if it is Kennedy, then the Court will limp on with a bunch of 4-4 deadlocks.

  5. I'm going to dissent in a small way and suggest that -- yes, depending who was being replaced -- it could conceivably be possible for the President to find someone that enough GOP Senators would vote for. It's mostly true that they would filibuster Bork if Obama appointed him, as JzB says. But I think if the nominee had not only attested (published) moderate-to-conservative views, but also the right CV, including affiliations with conservative institutions -- I think it could happen. I imagine the President could find someone like that that he'd agree to appoint in place of one of the hard right-wingers on the court. Where do you find such a person? Not in the judiciary, and I think not among people who have worked in recent Republican executive branches, but perhaps in academia or in private practice. So I'm not QUITE as pessimistic as the others.

    That said -- yes, filibustering a lifetime appointment to an absurdly powerful post is fair play, but implicitly or explicitly threatening to filibuster any possible nominee until it's someone from your side of the aisle isn't, and that is where we seem to be now.

  6. Oh, great -- I was out all afternoon, and now I look and I wrote the question(s) wrong; I meant to ask what happens if the Dem have 51-55 Senators.

    Either way...except for classicist, are you all just saying he'll nominate someone, they'll defeat her, and that's the end of the story? Will we see a string of nominees all defeated? Will the GOP just announce that they're not going to approve anyone?

    And, what if it's 51-55 Dems. At some point, would they change the cloture rules in mid-session? Just give up?

  7. My guess is that the scenario you describe may create a big enough leadership void to give rise to a group of moderate senators that would be willing to "play ball" on the condition that Obama picks an "acceptable" candidate. Then again, in the wake of a Republican takeover, being a moderate/RINO may be too costly, no matter how constructive it might be.

    Short of moderate deal making, maybe the only way an Obama selection would make it through in such a scenario, would be if he offered to consider selecting from among a pool of candidates hand-picked by Republican senators.

  8. Given this frightening reality, which I am only now thanks to Jonathan reckoning with, it seems to me that RBG at a minimum and perhaps even SB ought to just have gone ahead and retired this term as well. We're way beyond caring about appearances...

  9. It doesn't really matter whether you it's 51 Dems or 51 Reps. As long as the Dems have fewer than, say, 57 seats, the chances of a successful confirmation are slim.

    In any event, Obama should do what he should do with any SC appointment: pick the best candidate and try as hard as he can to get her confirmed. If the Reps filibuster her or vote her down, send up the next name. Worst case scenario, make a recess appointment and hope for a better Senate in 2013.

    A lifetime SC appointment is not like a smaller stimulus or a watered down finreg bill where compromise is reasonable. There is no way Obama can justify nominating a conservative to the SC just because that's the only type of nominee that can win confirmation.

  10. Another possibility is for Obama to pick a liberal who's like 75, so that Republicans will think he or she won't be on the court for that long. Maybe that could be his "compromise."

  11. Wow, I am in real disagreement with my fellow readers. Isn't this scenario exactly why Merrick Garland exists? The Republicans are not gonna filibuster a Supreme if he is seen by the public as a fair moderate to liberal choice by a sitting Democratic President. It would be just too big a hit for them. They are headed into a Presidential year not a low turnout mid-term.

    Oh, I want to also say that Elena Kagan is only a compromise choice in Greenwald world. In our world, she is a young, liberal justice who worked in the last 2 Democratic administrations.

  12. Yeah, I'm gonna dissent from the majority here, too. I think the political incentives are going to change after this election, and that enough Republicans aren't going to just want to hold up all business. Indeed, I think a few Republicans are probably already in that place, they just were willing to give leadership one more month 'till the elections. But I really have trouble believing Scott Brown won't want to find a way to burnish his moderate cred, or that Lindsey Graham won't continue to wanna show how much more open-minded he is than Obama, etc.

    Moreover, SCOTUS battles play out kinda oddly- for some reason, dragging your feet on SCOTUS nominations is a lot easier to spin as wanton obstruction than even working on emergency bills, at least to the people Senators listen to. I'd argue that there's actually little urgency in a SCOTUS appointment, but the history of the beltway (Gang of 14, fast-tracking Alito and Kagen) indicates that there's little appetite to leave a seat empty for very long.

    Finally, Obama's got a lot of options on who he can nominate. If he's replacing even Kennedy, he can go pretty far to the right while still moving the Court significantly to the left. If it's RBG, I can see the Republican appetite dying down based on the "eh, it's only a liberal for a liberal" meme that kept Sotomayor's confirmation relatively breezy.

  13. Hillary Clinton.

    Having actually served in the Senate, she may have enough personal contacts to overcome the otherwise automatic GOP filibuster.

    She's "liberal enough" and would bring a lot of life experience and brains to the Court.

    Plus, it would make Scalito's head explode, which is always a plus.

  14. @Colby

    If it's RBG, I can see the Republican appetite dying down based on the "eh, it's only a liberal for a liberal" meme that kept Sotomayor's confirmation relatively breezy.

    The problem with that argument is that it should have applied when Kagan was nominated to replace Stevens, who, though appointed by a Republican, was generally considered the most liberal member of the court. Instead, Republicans engaged in a propaganda campaign depicting Kagan as a radical who would institute Sharia Law, etc., and in the end she only got 63 votes. It's pretty damn well certain that the Democrats will lose at least three Senate seats next week; if they lose any more than that, how would they be able to stop a filibuster for replacing even one of the liberals?

  15. I'd argue that it DID apply to Kagan (it's just that I only heard that exact phrase used for Sotomayor). I mean, c'mon- from pretty much the week after Obama nominated Kagan, there was no real doubt she'd be confirmed. Sure, the Republican Propaganda Wurlitzer kicked into gear, but it did with Sotomayor, too (there's a reason everyone can still kick around the "wise latina" remark). In both cases, though, it seemed rather rote, like they were trying it, just to see, but didn't really expect much. And maybe that was just because of the margins in the Senate, but I doubt that; it's not like the long odds have made the Tea Partiers quiet down on any other issue.

    I dunno, at this point, I should certainly put nothing past Republicans. But of Kagan's 63, 5 were Republicans- and Scott Brown wasn't one of them. So I can pretty easily envision Obama filling RBG's seat with, say, 53 Dems. Any lower than that and you'd have to find the right candidate, but I bet one's out there.

  16. @ Johnny Cusack, you presume that the Repubs are concerned, first and foremost, with a functioning court and actually governing... Yes, there are hardcore people on the base for whom control of the court is THE issue but the politicians are not all that concerned, if they can use a filibuster or outright vote down repeatedly and sell it as blocking another "liberal activist judge" from ascending to the court (and if Obama nominates him/her, he/she is, by definition, a "liberal activist judge") they will chalk that up as a win.

    I don't think there is anyone that would both be acceptable to enough Democrats and okay with the Republicans -- because it isn't really about the nominee in the abstract (though it may be in reality) and the Republicans are mostly concerned with making Obama a one-term president.


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