SCOTUS Conformation Will Be More About Politics, Less About Judicial Philosophy

By: Scott Spiegel

When anticipating Obama’s upcoming nomination to replace retiring Supreme Court Justice John Paul Stevens, there are two approaches conservatives might consider:

Hope that Obama nominates the most conservative candidate, in case he gets confirmed;

Hope that Obama nominates the most liberal candidate, to highlight Obama’s radical ideology and make it easier for Republicans to reject her.

Relatively speaking, the most conservative candidate on Obama’s short list is D.C. Appeals Court Judge Merrick Garland.  The most liberal is Seventh Circuit Appeals Court Judge Diane Wood.

The problem with hoping for a moderate candidate is that anyone Obama is dreaming of nominating would be a disaster as far as adherence to the rule of law and upholding the Constitution.

The problem with hoping for a leftist candidate is that we cannot rely on Republican Senators to be courageous enough to block even the most egregious Obama nominee—even after the Democrats just declared war by passing a bill taking over the country’s health care system without a single Republican vote.

Given their dismal failure last summer to stand up to Our Wise Latina Sonya Sotomayor’s incendiary record (typical GOP critique during her confirmation hearings: Lindsey Graham’s creepy, drooling paean, “I like you!”), Republicans cannot be counted on to offer meaningful opposition to whichever train wreck Obama picks this year.

Tragically, this whole process should be a cakewalk for Republicans.  America is still a center-right country; the type of crowd Obama hangs out with is, to put it mildly, not.

Yet the New York Times tried to bully conservatives over the weekend in a story titled “G.O.P. Weighs Political Price of Court Fight.”  In the Times’ version of the story, it’s all about the Republicans—not President Obama, not any of his potential nominees—but the stubborn GOP and whether they still want to be seen as the petulant, spoiled party of “No, I don’t want to eat my peas!  I don’t care if they’re good for me!”

The Times opens their story thus: “The retirement of Justice John Paul Stevens presents a test for Republicans as much as it does for President Obama as they weigh how much they want to wage a high-profile battle over ideological issues in the months before crucial midterm elections.”

This is like saying, “The approach of dinnertime presents a test for Mom as she weighs how much she wants to wage a battle over nutritional issues in the hours before the family gets home.”  When is she supposed to worry about nutritional issues—after her children leave home?

When are Senators supposed to worry about ideological issues surrounding a Supreme Court nominee—after the candidate retires?

As congressman Mike Pence noted, depending on the progress of lawsuits filed against Obamacare by 14 state Attorneys General, the Supreme Court will likely rule on “whether the federal government has the power to compel Americans to purchase health insurance…  Now is the time to have a thorough debate over the course and direction of the court.”

This, of course, would require Republicans to insist that Obama’s nominee answer questions about whether the health care bill’s individual mandate requiring citizens to buy private sector insurance is constitutional.  Fat chance of the GOP squeezing a substantial answer out of any Obama nominee on that subject in confirmation hearings this summer.

When Republican leaders aren’t encouraging us to avoid discussing issues relevant to the confirmation process, they have been urging the GOP to avoid being… political.

According to Senator John Cornyn, who had an actual spine during the fight over the health care bill last year, “We need to probably bend over backwards both in appearance and in reality to give the nominee a fair process.”  You mean like the fair process Democrats magnanimously tendered in ramming through ObamaCare?

The honor of being nakedly partisan is apparently reserved for the left: see, for example, Senator Charles Schumer’s recent statement, “One of the most important qualities for the new justice is the ability to win over Justice Kennedy…  Somebody who’s going to be one of the five and not one of the four.”  No thoughtful discussion of judicial philosophy lurking there!

So Republicans shouldn’t be ideological and we shouldn’t be political in considering Obama’s nominee.  Can we at least have a roll of the dice and hope for snake eyes, or do we just have to roll over and play dead now?

I gather no comfort from the tough talk of Senators like Orrin Hatch, who promises “a whale of a fight” if Obama nominates a liberal activist, or Mitch McConnell, who insists that Republicans will demand a justice who gives “an evenhanded reading of the law.”  Whether these few principled leaders are willing to vote down or filibuster a nominee, too many Republican senators will not be.

My advice to Democrats and Republicans: Oh, just do whatever the hell you’re going to do anyway.

You will be held accountable—you on both sides of the aisle—on Election Day.

Scott Spiegel lives in New York City and writes at: www.scottspiegel.com.