WHETHER HE’S LOOKING FOR A FIGHT IS IRRELEVANT…. The LA Times has an interesting piece today on the process of looking for a new Supreme Court justice. I didn’t, however, find the article especially encouraging.
Obama is determined to avoid a “culture war” over the choice, White House aides and Democratic lawyers say, and he hopes to select a candidate who will not galvanize conservative activists over wedge issues such as abortion and same-sex marriage.
With that in mind, the White House is poring over the records of leading candidates for the high court, looking for potential flash points. That could lead to problems for some who are thought to be on Obama’s short list.
For example, Judge Diane P. Wood, a veteran of the U.S. 7th Circuit Court of Appeals in Chicago, has a strong record in support of abortion rights. She was a law clerk to Justice Harry Blackmun, the author of the Roe vs. Wade opinion, and she dissented when the appeals court upheld Wisconsin and Illinois bans on a late-term abortion procedure called dilation and extraction, which opponents call “partial birth” abortion. She also wrote an opinion reviving a lawsuit against the leaders of the antiabortion group Operation Rescue for using violence and “human blockades” to shut down abortion clinics. But the Supreme Court unanimously reversed her opinion in 2006.
As the Democratic governors of Michigan and Arizona, respectively, Jennifer M. Granholm and Janet Napolitano — two other potential court candidates — vetoed state bans on dilation and extraction.
Now, it’s hard to say whether the article is a genuine reflection of the president’s thinking. But if it is, I suspect the White House will have to adjust its expectations.
There’s nothing wrong with aiming for a smooth confirmation process, but conservatives aren’t going to be happy with anything but a conservative nominee, and Obama is unlikely to give them one. Hoping to avoid a right-wing freak-out is likely counter-productive — these activists are going to be angry no matter who the president nominates.
Indeed, we’ve seen one very illustrative example of this. In March, Obama nominated District Court Judge David Hamilton of Indiana for the 7th Circuit last month. Given Hamilton’s record of moderation, the White House said the nomination was intended to send a signal that this process need not be contentious. “We would like to put the history of the confirmation wars behind us,” one aide said.
This was after Obama went out of his way to avoid a fight.
The point is, there’s very little the president can do to discourage a conservative fit. Passing over a qualified nominee because he or she might spark a “culture war” is pointless if the right is determined to launch a “war” anyway.