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For A Change…


Over at the Prospect I make the case for nominating an actual liberal for the Supreme Court.  In particular, there’s no political reason for not doing so:

It might be objected at this point that a nominee like Karlan or Koh might compel a Republican filibuster. The proper answer to this is, so what? First of all, in the (probably unlikely) possibility that a filibuster of a nominee holds, the result would be the eventual confirmation of a more moderate nominee. If Obama preemptively nominates a moderate nominee, the result would be … exactly the same. In the worst-case scenario, progressives are no worse off.

This might be a problem if this would increase Republican obstruction in other areas, but with the centerpiece of Obama’s first-term domestic agenda already passed, the prospect of further major legislation near zero, and Republican obstructionism in the Senate virtually maxed out, there’s no reason to believe that a Republican filibuster would incur any net political cost. If anything, it would provide ammunition for a narrative painting the Republicans as the “Party of No” while providing a venue for defending liberal constitutional values. And finally, the filibustering of a Supreme Court nominee for the first time since 1968 (and second total) would escalate the cycle that is likely to lead to the elimination or substantial modification of the filibuster rule — something that would be a massive victory for democracy.

To paraphrase Joey La Motta, if Obama puts forward a strong progressive nominee and we win, we win. If we lose, we still win.

Of course, Obama is likely to lean towards a more moderate candidate on substantive grounds. Of the actually viable candidates, as I imply Diane Wood seems easily the best to me.

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  • I actually think Wood is the most likely nominee.

  • Incontinentia Buttocks

    Wood is certainly better than Kagan.

    As for what progressives on and off capital hill ought to be doing, insisting loudly on an actual liberal nominee is clearly the best course of action. This is a fight over the Overton Window. And the further left that progressives move it, the better.

    • DocAmazing

      A progressive nominee is off the table.

      La plume de ma tante n’est pas sur la table.

      • Captain Splendid

        Is that a gut feeling, or you think the HCR fracas has emboldened the Dems to go with Scott’s plan?

        • Captain Splendid

          Disregard. Flu is bad for everyone…

  • JW

    Like most Americans, I ‘m not familiar with the credentials of even a single likely candidate for the high court. I do believe that Obama is a very conservative guy, one who would be extremely unlikely to nominate an “actual liberal” for any reason under the sun.

  • JR

    He could always try the Bush system: nominate an utterly unqualified moderate, let him or her flail and fall after a thorough media evisceration, then nominate an undeniably qualified ideologue (at which point opponents will throw their hands up in the air and just count their lucky stars that the first idiot isn’t on the Bench).

    • Captain Splendid

      You know, that’s the beauty of the Bush regime: half-ass it, and watch it work most of the time because you’re so darned stubborn.

      • Kurzleg

        Are you sure it’s half-assed? Rove, for one, seemed shrewd enough to employ such a strategy. Enervate the Democrats by forcing them to oppose a cypher and then nominate the candidate you really want once they’ve blown their oppositional wad.

        • witless chum

          As I recall it, though, the Dems weren’t as big a part of opposition to Miers as the conservatives were. The Dems didn’t really get their shot at her before she was pulled.

  • bh

    If Obama preemptively nominates a moderate nominee, the result would be … exactly the same. In the worst-case scenario, progressives are no worse off.

    Unfortunately, preemptive compromise seems to be a core administration strategy.

    • larryb33

      sadly, it is not even compromise. It is more like preemptive cave.

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  • CJColucci

    As an actual political liberal and a practising lawyer, I’m not sure what the actual liberal legal agenda is, other than voting more like Ginsburg and less like Thomas, which I suspect any Obama nominee will do. And there’s a lot of work to do to hold the line against aggressive attempts to roll back the post-New Deal legal consensus on the powers of the federal government, protection of civil rights and liberties, and basic decency in criminal procedure. But what is the specific, affirmative liberal legal agenda? For my money, most of what the Supreme Court can legitimately do to advance liberal visions has been done, and we’re either playing defense or tinkering at the margins.

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