Posted on 05/02/2009 6:37:50 AM PDT by Behind Liberal Lines
there is no reason to expect that a Supreme Court justice appointed by President Obama will be significantly worse than Justice David Souter has been. But there is still less reason to hope that he or she will be any better than Souter. It has been a long time since the Democratic Party seemed capable of generating Supreme Court appointees who had any reliable notions of judicial restraint, let alone an attachment to originalism. This is the party that once gave us justices like Felix Frankfurter, Robert Jackson, Fred Vinson, and Byron White—all of whom would find themselves on the outs with today's Democrats, and with the prevailing habits of mind among liberal legal scholars. It says a lot about the Democrats that the last Supreme Court justice they appointed, for whom anyone wedded to judicial restraint could have any real regard, took his seat in 1962.
With 59 or 60 Senate seats in Democratic hands, there is really nothing Republicans can do to prevent President Obama from appointing whomever he wants. He need only satisfy his own party, and that shouldn't be hard. So what should Republicans do? Herewith some preliminary thoughts (I'm assuming the worst sort of nomination, of course, but not without cause):
1. Slow the probable rush to confirmation. Democrats will not be interested in spending much time on this. Why should they be? It's up to Republicans to throw some sand in the gears. Why should they bother? In order to—
2. Develop an argument. Get witnesses before the confirmation hearings, write a strong minority report on the nominee's record, question the nominee him- or herself aggressively. The pattycake played with Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994 is a precedent to be avoided, not followed. Pointed questions about controversial past decisions are definitely in the strike zone, in my opinion (and I said so when George W. Bush's nominees had their innings too). The more a nominee's fitness is probed, the more unacceptable he or she might be made to look to the American people. This is not "Borking" if it is done with fair argument about the legal issues at stake. But however bad a nominee looks,
3. Don't go near the filibuster. It's not only hypocritical after so many GOP senators professed their opposition to it while George W. Bush was president. It's also just plain wrong. Supreme Court nominations deserve an up-or-down vote. But in order to reach a unanimous consent agreement on the norms governing floor debate on the nomination, Republicans should push for as much time as is reasonably possible. Again the development of the argument is the thing, and that takes time. And finally,
4. Stick together as a party opposed to the nominee. Sure, the Democrats and the White House will try to paint the GOP senators as nasty naysayers. But did it ever do the Republicans one bit of good that Ginsburg was approved by a 96-3 vote and Breyer by 87-9? When those two justices proved to be just as activist as every reasonable observer expected them to be, there were damn few senators who were in a position to give an acceptable answer to the question, "So what did you do about that when you had the chance?" Given the sort of nominee I expect to see from President Obama, it would be a disgrace for the Republican Party if the affirmative votes totaled more than 70. After all, a party unwilling to stand for something when it is in the weaker position won't persuade many voters that it deserves to be in a stronger one. And every Supreme Court nomination is an opportunity to revisit basic constitutional principles that are enduringly popular with the American people, whether you win the vote or lose it.
Do I expect Republican senators to take my advice? Well, let's not ruin a good Ought by turning to the ugly Is. But a guy can hope, can't he?
Excellent Post! Expose them for what they are and let the people decide.
The Republicans will have spines of jello on this one. They will cower in the corner and beg for the Democrats to be nice to them.
This is important, I think, in order to force the DEMs into admitting that they are hypocrites. Plus, on a power-politics level, one has to go as far into the gutter as the other guy does, or else lose. This is a street fight, not a boxing match. DEMs kick in the balls, we should too.
Few words.
Much meaning.
Hard for Me to accept that Ginsburg was approved by a 96-3 vote and Breyer by 87-9. If Republicans had acted and voted like they were elected to do the Country would not now be clinging to it’s capitalist root’s.
Gotta give ‘em credit for being consistent...
If they have a record as rabidly anti-gun or pro queer marriage we need to drown the public with that information.
Both of those issues are losers with the public, even demonrats.
Problem is that it won't work. There are enough votes for cloture. And if the GOP filibusters and loses the story will be about that and not the nominee's viewpoint.s
Care to bet your life on that prediction?
OBAMA VOTED TO FILIBUSTER A BUSH NOMINEE,TURNABOUT IS FAIRNESS . We all know Obama only cares about fairness and nothing else.
Secondly this guy was elected by fraud ,he was never vetted and if he wants to appint judges who wil flout the law of the land they should be fought with every tool you have that is a RESPONSIBLITY of the representatives in Congress . The president has stated that he believes the Constitution is a Flawed document,it is full of NEGATIVE rights,that it tells what the Government cant do to you but not enough of what the Government should be doing for you.
Well if that doesnt tell you that this guy has it all backwards nothing will. He wants to appoint justices that will judge on their own Whims,will look for someone with Empathy towards Single Mothers ,gays ,people of color ,life experiences . The only thing that will disqualify a candidate is someone who believes in the rule of law and the Constitution.
Has Obama ever seen the Statue of LADY JUSTICE? She is Blindfolded,Justice is BLIND. I will answer my own question, He has done the same thing with this statue as he Did with Winston Churchills he sent it back
WHOEVER he nominates must be thoroughly BORKED!
To my mind. Any Republican Senator that votes for an Obama Supreme Court Nominee is an out-and-out traitor. I don’t care who the nominee is or what they stand for. I know by 100 days of experience that Zer0’s choice will be as ill-considered and arrogantly in-your-face as the rest of his appointments and nominees. I don’t need to consider anything about his choice - only that I am steadfastly against it. If either of my two Senators votes positively on any nomination he makes it will be the last vote I cast for them, period. Obama has arrogantly declare war on us - we should declare and sustain war on him.
The American people decided on Nov. 4, 2008, and they went all the way with socialism even if they were too dense to understand.
Was Helms one of the three against Ginsburg? Who were the other two?
I have to disagree.
Since the election, Republicans have shown me that they know that playing along with the Dems not only didn't gain them anything, but caused them to lose both houses of congress. Just one evidence of that was rather than falling in lockstep with the Dems on the the stimulus bill, they all stood up to a president at the height of his popularity and said "No".
So, I'm going out on a limb and say that they will stand up to these nominees too.
I have to disagree.
Since the election, Republicans have shown me that they know that playing along with the Dems not only didn't gain them anything, but caused them to lose both houses of congress. Just one evidence of that was rather than falling in lockstep with the Dems on the the stimulus bill, they all stood up to a president at the height of his popularity and said "No".
So, I'm going out on a limb and say that they will stand up to these nominees too.
Bet my life on what a low life, self-serving, hypocritical politician might or might not do? Not a good idea, although I have to admit that I've done it more than once, volunteering to go in harm's way only to have my efforts (and those of hundreds of thousands of like minded warriors) go for naught when spineless politicians run away from victory.
We need to be frequently reminded that these elected officials care only about their own power and enrichment.
You could say that the Tea Parties were a cry to return to Constitutionalism. We should demand a strict Constitutionalist on the Court as part of our future protests. Maybe we could stage a few in anticipation of the nomination. After all, Souter was appointed by a Republican.
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