Daniel Foster at The Corner reacts to a report at TPMDC that Pres. Obama “isn’t taking a cautious approach to selecting a nominee” to replace Justice Stevens on the Supreme Court [emphasis is Foster’s]:
Like most of the blogosphere and broader political media, I figured President Obama would choose a relative-centrist like Kagan or Garland for the Stevens seat on the Supreme Court. My thinking was that the president had too many fights left to pick with the Senate this year to burn off the whole summer in a nomination battle. Moreover, a pick like Kagan would get the president 80 percent of what he wanted on policy (Kagan would be a reliable liberal vote on social issues) while putting the Senate GOP in an awkward spot politically. If they made too much of a fuss over Kagan — who is liked and respected by key Republicans and Federalist Society types — Democrats could and no doubt would hammer the GOP with more “party of no” rhetoric.
But Christina Bellantoni at TPM has it from an administration official that the president feels no pressure to pick from the center-left. Obama, the official says, feels “liberated” by his certitude that Republicans will fight whomever he nominates[.]
“It doesn’t matter who he chooses, there is going to be a big ‘ol fight over it. So he doesn’t have to get sidetracked by those sorts of concerns,” the official told me. The GOP has attempted to obstruct “anything of consequence” put forth by the Obama administration since he took office, the official said. “The president is making this decision with a pretty clear view that whoever he chooses is going to provoke a strong reaction on the right,” the official added.
It is troubling that the White House is thinking this way, because I’m not sure the Senate GOP is. Senate Republicans should and will use the nomination to present their case for judicial restraint and Constitutional fidelity on the high court. But I doubt they’re ignorant of the need for a proportional response. A Kagan or Garland confirmation battle would look, I figure, a lot like the Sotomayor hearings. Hearings for Diane Wood, Harold Koh, or Pamela Karlan, on the other hand, could range from ugly to Biblical.
So Foster thinks a “Kagan or Garland confirmation battle would look … a lot like the Sotomayor hearings”?
That’s interesting, because Republicans told Sen. Patrick Leahy during Sotomayor’s confirmation hearings that they would oppose anyone Obama nominated.
The fact is, Sotomayor was confirmed over the most unified GOP opposition to a Democratic SCOTUS nominee in the history of such votes:
Since the Republican Party’s formation in 1854, the Senate has voted on 30 Democratic presidential nominees to the Supreme Court. Twenty-seven of these nominees, including Sotomayor, have been confirmed.
The Sotomayor vote is significant in that it marks one of the most unified Republican fronts against a nominee by a Democratic President in the 151 years since the Party’s first such vote in 1858 when President James Buchanan nominated Nathan Clifford.
Prior to Sotomayor, the largest number of total votes cast against a Democratic presidential Supreme Court nominee since the turn of the 20th Century was 22 – when Woodrow Wilson put his economic adviser Louis Brandeis up for confirmation. But of the 40 Republicans in the Senate at that time, just 21 voted against Brandeis, or 52.5 percent of the caucus (one Democrat joined in opposition).
Thirty-one Republicans voted against confirming Sotomayor, out of 40 in the Senate — almost 78% of their caucus:
Republican opposition to Sotomayor, at more than three-quarters of its caucus, therefore stands as one of the most unified fronts against a Democratic president’s nominee in Republican Party history, and the most unified dissent since the turn of the 20th Century.
So yeah, undoubtedly a “Kagan or Garland confirmation battle would look … a lot like the Sotomayor hearings.” I’m just not sure I follow Foster’s reasoning on how that should motivate Obama to take Republicans’ advice on who to nominate this time around.
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