WE’RE LIKELY TO HEAR A LOT OF THIS…. In February, when Supreme Court Justice Ruth Bader Ginsburg’s health concerns made it seem like a high court vacancy was imminent, President Obama got quite a bit of advice from the media establishment. This item, from Newsweek‘s Stuart Taylor, is the kind of perspective we’re probably going hear a lot of as the White House weighs a replacement for Justice David Souter.
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.
This is exactly the kind of perspective the White House would be wise to ignore, no matter how common it becomes among the chattering class.
The argument is straightforward: while Bush picked rigidly conservative justices, Obama should only consider centrists. To do otherwise might upset Republicans and “sacrifice” political “good will.”
Except, of course, Republicans are going to be upset anyway — assuming Obama doesn’t nominate a Federalist Society member — and have no intention of offering any “good will.” If the president picks a high court nominee solely on the basis of Republican sensibilities and avoiding a “contentious” process, he’ll be unnecessarily governing from a position of weakness. That’s backwards — Obama enjoys strong approval ratings and a huge Democratic majority in the Senate.
When all is said and done, one of any president’s lasting legacies is the jurists he/she picks for the high court. Why worry about whether the discredited minority party is happy with his choice?
As Digby noted in February, “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.”
If the White House is open to suggestions, I might recommend Dahlia Lithwick’s recent piece on the kind of justice Obama should consider. Lithwick argued that Obama should, in effect, look for a liberal Scalia — a persuasive and passionate visionary with a decidedly progressive worldview.