Will the difference between Obama and Romney matter for the Supreme Court? Professional obfuscator of significant partisan differences David Sirota says no. And if a pundit who doesn’t actually know anything about the Supreme Court has made a bad argument, we’re likely to see it here!
Before we get to that, let’s first ask whether, on the surface, the Supreme Court Argument is even valid? Looked at through the prism of history, the answer is murky at best. Recall that Republican presidents in the past have appointed some of the court’s most liberal voices, from Eisenhower nominee Earl Warren to Ford nominee John Paul Stevens to Bush I nominee David Souter.
First of all, this would be relevant if Obama were running against Zombie Dwight Eishenhower or Zombie Gerald Ford. How anyone can see a continuity between the national Republican Party of 1952 and 2012 is beyond me, although that certainly explains a lot about Obamaney hackery. (Sirota seems to have bought Romney’s painfully obvious con, and he’s not even the intended mark!) At any rate, the Souter selection — which was a fluke of obscure administration politics that didn’t reflect any desire on the part of George H.W. Bush to put a liberal on the Court — ensures that we’ll never get another Souter from a Republican.
Relatedly, I should note that the idea that Supreme Court justices are “unpredictable” is highly misleading. Judges chosen for ideological reasons are, in fact, highly predictable. Eisenhower picked Warren and Brennan for political reasons, and it’s not is if their relative liberalism wasn’t known at the time they were nominated. Current institutional norms insure that Supreme Court choices will be largely ideological.
Now, let’s ask the more disturbing question about Democrats and their Supreme Court Argument: namely, what are they really saying when they specifically insist Romney must be defeated to prevent his presumably ultraconservative nominees from getting onto the court? They are actually making the self-incriminating admission that they know their own party will not use their powers in the Senate to vote those nominees down. In constitutional “advice and consent” terms, they are too willing to consent to any jurist – no matter how extreme – a Republican politician nominates. In fact, while Ronald Reagan and George W. Bush did withdraw nominations on their own, Democrats haven’t actually mustered the courage to vote down a Republican Supreme Court nomination in more than a quarter-century.
And conservatives haven’t prevented a Democratic nominee from being confirmed to the Supreme Court in more than forty years!
Anyway, this argument is really silly, for reasons I’ve already discussed at length. Obviously, Senate Democrats can place some constraints on a president’s nominees. But there’s no reason to believe that Senate Democrats can stop Romney from appointing anyone, and although Sirota is the last person in the world who doesn’t understand this generic Republican circuit court judges who don’t write controversial articles are far more likely to be Alitos than Kennedys. And even in the extraordinarily unlikely event that the Democrats could stop any nominee to the right of Bork’s replacement, remember that Kennedy just voted to hold the New Deal unconstitutional, cast the swing vote to hold arbitrary strip searches unconstitutional, etc. etc. etc. The difference between a court where Anthony Kennedy is the median vote and Elena Kagan is the median vote would be huge — and that’s the best-case scenario.
“Obama’s track record is not actually that good (on court nominees),” noted Matt Stoller here at Salon. “As a senator, Obama publicly chided liberals for demanding that Sen. Patrick Leahy block Sam Alito from the Supreme Court. Meanwhile, Obama-appointed Supreme Court Justice Sonya Sotomayor has in her career already ruled to limit access to abortion, and Elena Kagan’s stance is not yet clear.”
Stoller’s analysis makes sense — if you think that Samuel Alito is a liberal. If you actually understand anything about how federal courts work, not so much.
That said, just remember that every time the Supreme Court Argument is aired as a means of shutting down a discussion about inconvenient truths, the arguments proponents are openly admitting that nobody should believe today’s Democratic Party is for what it says it is for.
Or it could mean that the fact that presidents have the appointment power means something, there’s no precedent for serially rejecting nominees, and serially rejecting nominees would lead to an institutional equilibrium that would be much more congenial to reactionary interests. Who can say?