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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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