The politics of the next justice

THE POLITICS OF THE NEXT JUSTICE…. Last week, before we learned that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer, Dahlia Lithwick had a very good piece on the kind of justice President Obama should consider for the high court. Lithwick argued that Obama should, in effect, look for a liberal Scalia — a persuasive and passionate visionary with a decidedly progressive worldview.

In the new issue of Newsweek, Stuart Taylor offers some very different advice.

Conservatives concede that the Democrat-led Senate would almost certainly confirm any Obama nominee, absent any damaging revelation. But the more liberal the nominee, the more contentious the confirmation hearings will be. The president’s stance as a consensus builder might suffer if his first choice seems likely to support liberal causes such as gay marriage. […]

When it’s Obama’s turn to pick a nominee, he’ll either sacrifice some political good will or he’ll upset his base. There’s not much middle ground.

I’d hoped the last three weeks would have made clear that this kind of advice is a mistake.

To hear Taylor tell it, Obama should pick a less-liberal justice — assuming a vacancy arises — in order to make Republicans happy. The goal, the argument goes, is to look like a “consensus builder,” and avoiding “sacrificing” the minority party’s goodwill.

I can’t help but wonder where this “goodwill” has been hiding, and why the president would bother trying to govern with Republican sensibilities in mind. When all is said and done, one of any president’s lasting legacies is the jurists he/she picks for the high court. The president’s “stance as a consensus builder” should be quite low on the list of considerations.

As Digby noted, “It’s pretty clear that [Obama] will be expected to nominate moderate judges who aren’t considered ‘activists’ or risk a full blown hissy fit of epic proportions and once again be said to risk his agenda. (‘Give me everything I want, or I’ll accuse you of partisanship!’) If Obama worries about that, he’ll end up pushing an already right wing court further right, and that is unthinkable.”

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