Polemic Justice: Framing the Supreme Court Debate

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When Supreme Court Justice John Paul Stevens announced last Friday that he would retire at the end of this term, thus leaving a liberal gap on the bench, the next great legislative war was conceived. As Stephen Colbert colorfully put it last night, “No matter who the president nominates, cable news will be talking about this all summer long. I mean, you will not be able to swing a dead cat without hitting a legal analyst.”

But stakeholders aren’t waiting until summer to set their stages for the debate. This morning at the capitol, Democratic Senators Leahy and Schumer held a press conference to scold Republicans for holding up other judicial nominees during the past year, in part as an attempt to keep the big-time confirmation from eclipsing vacancies that have yet to be filled — though also to paint yet another coat of “Party-of-No” atop their GOP colleagues.

Leahy, chairman of the judiciary committee, said Republicans have followed a groundless “pattern of obstruction and delay” and used Judge Barbara Keenan, whose confirmation was put off for almost six months before she was approved 99-0, as his case-in-point. By comparison, he noted, the average committee-to-confirmation time in the days when George W. Bush and a Democratic senate were both in power was about six days. Schumer echoed him with some rhetorical gusto. “We could get [confirmations] done in a half hour, but they’re blocking it. Reason given? None. None. None,” he said with accompanying fist-hammers on the lectern. “It’s inexcusable. There’s no excuse for this kind of delay.”

When asked about these assertions after the conference, Republicans senators weren’t apologetic. “My sense is that President Obama’s White House is holding up judicial nominations,” said Tennessee Sen. Lamar Alexander. “They’re the slowest administration to nominate candidates that I’ve seen.” South Carolina Sen. Lindsey Graham was similarly nonplussed. “We’re not going to be lectured by our Democratic colleagues,” he said.

On last Sunday’s Meet the Press, Leahy and Sen. Jeff Sessions, the ranking Republican on the judiciary committee, mostly discussed the possibility of a filibuster, another popular lens for looking toward the nomination. And Sessions, as pretty much every other Republican senator, markedly did not take the possibility off the table. Graham says that a filibuster would be employed only in “extraordinary circumstances,” but that “the politics of this makes sense for the President to find a consensus candidate.”

That statement points to a third vein for the debate: whether “confirmability” has, more than ever following the draining health care fight, become the quality that will supersede all others in terms of who Obama chooses. “[Obama’s] gonna get pushed back from the left to pick the most liberal person he can. And obviously we’re gonna get pushed back from the right to say ‘No’ to everybody,” Graham says. On Sunday, Sessions recommended that the president use the barometer of whether a nominee can get 70-plus votes as his guide, and he’ll get his chance to try to help that happen: The White House announced this morning that they would be inviting the leaders of both parties, as well as Sessions and Leahy, to meet with Obama on April 21 to discuss the short-listed nominees, as the president did pre-Sotomayor.

Although none of the hopefuls will make divisive commitments while being vetted, legislators are also interested in whether the next justice would consider overturning the Citizens United corporate-funding case or taking a stance on the constitutionality of health care. And with those and so many other unknowns still on the scene, trite bet-hedging remains the mainstay. “We intend to evaluate the nominee, once he or she is put forward, and not prejudge the outcome,” Senate Minority Leader Mitch McConnell said in his lunch-time conference. “Most of my members have been historically concerned about judicial activism, but we’ll have to wait and see who the president nominates, and we’ll go from there.”