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Sunday, May 3, 2009

Hoping For The Supreme Court Episode of "You've Been Punked By Obama"

The Obama administration has been bipolar. When it comes to economic issues, Obama is in the process of attempting to fulfill the left-wing's wildest dreams of nationalized health care, government control over the most minute details of the economy, and redistribution of wealth through tax policy. On foreign policy, Obama's apology tours have liberals howling with joy. On the issue of interrogations, Obama satisfied many by releasing the four interrogation memos, although he has resisted calls for prosecution leaving some on the left feeling dissatisfied.

On the other hand, Obama has betrayed the left-wing on some issues related to national security and detainee policy. The latest example being the intention to continue Gitmo-style military trials. And much of Obama's campaign rhetoric has been mocked in hindsight even by the usually compliant mainstream media. On so many issues, the American public -- but particularly the far left -- was punked by Obama's campaign promises.

Now we are on the eve of one of the most important decisions any President can make, the nomination of a Supreme Court Justice. Assuming Obama picks someone in his or her late 40's or 50's, that person likely will be on the Supreme Court several Presidents from now. When we reflect back on the silver-anniversary of the election of the first black President, the nominee still will be holed-up in the Supreme Court building penning opinions on the legal issue of the day.

Understandably, the left-wing is worried. Not that Obama will pick a conservative, but that Obama will pick someone "neutral" or only slightly liberal. Oliver Willis, writing at the Huffington Post, expresses a common sentiment:
There are a lot of areas where, I feel, the left has to give President Obama some leeway in how he operates. There are from time to time concessions that must be made and comprises that must be happen in order for the realistic political actions of the presidency to materialize into policy. But when it comes to the Supreme Court, there can be quarter given. When it comes to the court, the center cannot hold.

President Obama should appoint an honest-to-goodness liberal to the Supreme Court.
I'm not so sure Obama will follow this advice. Predictions are always dangerous, but my prediction is that Obama wants to select someone who will get through the Senate, and not be subject to successful Borking. Obama wants to reshape the economy, and he does not need a nasty Supreme Court nomination battle to reinvigorate the Republican Party and put so-called "blue dog" Democrats in the hot seat.

While Democrats are on the verge of a 60-seat filibuster-proof majority, they are not there yet. And there are both Judiciary Committee procedural issues and Senate personalities to deal with.

Arlen Specter has switched sides, but it is anyone's guess whether he will side with the Obama administration if the nominee is too far left. Specter's arrival at the Democratic caucus was not exactly greeted with open arms by fellow Senators worried about their seniority. And Specter strongly opposed Bill Clinton's nomination of Elena Kagan (reportedly on Obama's short list) for a federal appeals court position. Specter, at this late stage of his career, is mercurial at best, and cannot be counted on as an automatic "yes" vote.

Ben Nelson, Democratic Senator from Nebraska, has sent the left into hypothermia over his announcement that he will not support the creation of government health insurance to compete with private insurance (which would have had the effect of destroying private insurance). And Evan Bayh of Indiana, who is up for re-election, voted against Obama's multi-trillion dollar budget proposal (Nelson being the only other Democratic Senator to do so).

What this all says to me is that if Obama truly wants someone in place by October 1, as he says, then Obama will pick a relatively neutral nominee who leans left but will not satisfy the hard left. Another David Souter, who plays his cards close to the vest during selection and confirmation, which runs the risk that the nominee will turn out to be something other than expected. And someone who does not have political or ideological baggage (which probably rules out Harold Koh who has controversial theories of the interaction of international and domestic law, or Deval Patrick who has enormous political baggage).

So I'm hoping that Oliver Willis and others will feel punked when Obama announces his pick for the Supreme Court. Or at least worried that Obama has selected his David Souter, someone who spends the next decades causing liberals to chant "not another [insert name].".

Will I be right? Hey, you can't take away my dreams.

Related Posts:
Why Is Deval Patrick On Anyone's List?
Specter Defection Will Haunt Dems On Souter Replacement
Obama Bows, Koh Suffers

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  1. So I'm there except for one thing. You've articulated a very well-thought strategy for picking a judge, but I don't see a ton of well-thought strategy coming out of the current administration. I'm fond of saying that strategy requires courage of convictions, but dies in the face of ego. I don't believe there's anyone in the admin who can rightfully point out that an ego choice would not work. Therefore, I'm expecting a pretty strong and under-represented minority liberal as the choice, and then shock that the choice doesn't fly.