Monday, May 04, 2009

Thoughts on the Souter resignation

David Souter, a Republican appointment to the Supreme Court, is resigning, and Democratic President Barack Obama will get to name his replacement. The justice who described sitting on the court as an “annual intellectual lobotomy” has decided to leave it all behind.

Since Republicans are in the minority, substantially, there’s little they can do to stop the nomination.

First, can we note the irony of the filibuster debate? Local liberal blogger Jay “Center Square” Bullock leaps quickly, even prematurely, into the fray to complain,

Let’s all remember that not too long ago Republicans were telling us that filibustering Supreme Court nominees was akin to treason or something.

Not quite treason, just nearly unprecedented and certainly unwarranted. Bullock’s purpose is to cry “hypocrite” should any Republican dare utter the word “filibuster” should President Obama name someone uniquely unqualified to sit on the highest court. Hypocrisy is the worst charge Bullock can hurl, more damaging than any other epithet in his limited vocabulary.

But who would be the hypocrites? Kevin Binversie reminds us of a certain US Senator with little to show he was present in the chamber except for this moment:

Sen. Barack Obama said he would vote Monday to filibuster Judge Samuel Alito’s confirmation to the Supreme Court, but he conceded the effort would be futile and criticized Democrats for failing to persuade Americans to take notice of the court’s changing ideological face.

“The Democrats have to do a much better job in making their case on these issues,” Obama (D-Ill.) said Sunday on ABC News’ “This Week.” “These last-minute efforts–using procedural maneuvers inside the Beltway–I think has been the wrong way of going about it.”

Let’s remember, too, that while a number of Republicans proposed the “nuclear option” of changing Senate rules to abolish the filibuster, a bipartisan coalition of senators agreed to prevent such a rule change just so the option of filibustering future judicial nominees could be preserved. That act endorses the very idea that sometimes a filibuster of a president’s judicial nominee is warranted. This great compromise was nearly universally hailed at the time.

All that said, the point is likely moot. The Democrats surely have enough votes to prevent a filibuster of all but the most uniquely unqualified or corrupt individual President Obama could appoint. After what I am sure will be a thorough vetting (including the nominee’s tax returns, adult entertainment viewing, and use of immigrant labor), the Obama selection will likely be of the same pedigree and ideological purity of the other recent Democratic Supreme Court appointments.

Republicans will need to take this opportunity to focus on a case for the conservative judicial philosophy, using Obama’s nominee as a foil rather than hoping to defeat the nomination. Rather than just embarrass the nominee over a particular past decision or opinion, Republicans will need to use the President’s nominee’s history to highlight the differences in the conservative and liberal judicial philosophies.

It won’t be as flashy as finding a former nanny who was here illegally and found a marijuana joint in the porn collection buried under a collection of falsified tax returns. But it will help make the case for future conservative nominations, both at the federal and the state levels.

Given the size of the Republican minority, it may be the best they can hope for.


What is it about the Bush family and judicial nominations that go awry? If the Republican Party still does not understand why Harriet Meirs had to be defeated, Souter’s decision to resign shortly after Obama took office should be reminder enough of what happens when Republicans pick the wrong nominee. Bad enough Souter turned out to be a run-of-the-mill liberal vote on the court. But if he was really temperamentally unsuited for the job, surely some sense of loyalty should have made him consider resigning last year instead of now.

Unfortunately, the Bush family’s loyalties often go unrequited, as yet another ungrateful beneficiary of the Bush family legacy in politics demonstrates.