Expectations

EXPECTATIONS…. When you think about it, conservative activists haven’t had to fight to destroy a Supreme Court nominee in several decades. Clinton had two nominees, and both were confirmed with minimal opposition. Carter didn’t fill any vacancies. LBJ had two, and Republicans filibustered Abe Fortas’ nomination to be Chief Justice in 1968, but that was over four decades ago, before the modern conservative movement even existed.

So, this is the first real test for the right in contemporary political times, and the various players are obviously gearing up for a knock-down, drag-out fight, which they are, incidentally, very likely to lose.

At this point, before Souter even formally announces his intentions and long before we know who the nominee is going to be, I’d like to offer my friends on the right some advice: lower your expectations.

Early front-runners for the bogeyman nod have cropped up: Darling mentioned Yale University Law School Dean Harold Koh, whom he called “very extreme.” [Jay Sekulow, the prominent conservative lawyer who heads the American Center for Law & Justice] specifically called out 2nd Circuit Appeals Court Judge Sonia Sotomayor, an early favorite for the nod, as “to the left of David Souter.”

“This is not my ideal situation,” said Kay Daly, president of the Coalition for a Fair Judiciary. “Obama could conceivably put a justice onto the bench that literally would make Souter look like [Associate Justice Antonin] Scalia.”

Well, yes. Daly’s misuse of the word “literally” notwithstanding, a progressive Democratic president, working with a large Democratic majority in the Senate, is likely to nominate a justice who would be “to the left” of a Republican nominee. That’s how the game works. Democrats tend to nominate more liberal judges, Republicans tend to nominate conservative judges. It’s not complicated. The issue came up repeatedly during the presidential campaign, and Obama won by a large margin anyway.

My point is, conservative activists seem to be all worked up, convinced that they’re not going to like President Obama’s choice. Guess what? They’re not. And if somehow they manage to take down Obama’s nominee, and the president picks someone else, they’re going to hate his second choice, too.

“This is not my ideal situation,” Daly said. You don’t say. Since Daly’s side lost and only has 40 votes in the Senate, I think that’s an understatement. But, really, what do she and Sekulow expect to happen here?