The life of the law has not been logic; it has been experience. - Justice Oliver Wendell Holmes, Jr. The news of Supreme Court Justice David Souter's imminent retirement hit Washington, DC, to paraphrase Hunter S. Thompson, like a dung bomb. Not that there isn't a great sense of excitement over the prospect of what the next few months will almost certainly bring. There is, of course; a Supreme Court nomination is about as high-stakes a game as you get, where political fortunes have been won and lost many times, and with historic consequences.
The defeated Bork nomination unleashed twenty years of conservative vengeance, while the successful Thomas nomination signaled the beginning of a long ebb-tide for Democratic Party power and influence. So there was plenty of excitement after Souter announced, to be sure, but it was tempered by an "Oh, come on, really?" sense of exhaustion and overload. The current workload confronting the Democratic presidential administration and congressional majority can kindly be described as overwhelming already; two wars in Iraq and Afghanistan, unrest and Taliban militancy in Pakistan, a domestic auto industry in chaos, a mortgage bailout bill in defeat, and an economy still far from being on the mend have already crowded their front burner, with maybe a dozen or two slightly smaller problems likewise awaiting attention.
A Supreme Court nomination at this point isn't so much like tossing a straw, as it is like tossing a railroad tie, onto the camel's back. These things have always become an all-consuming phenomenon in DC, sucking the oxygen out of virtually everything else that's going on. The Obama administration and congressional Democrats have already put themselves in the position of needing to do fifteen incredibly complicated things exactly right all at once, and now they have this to contend with. Suffice it to say, it will be a busy summer for anyone with a (D) after their name.
For the GOP, however, the advent of a new Supreme Court nomination is as awesome to contemplate as it is terrible, rife with both opportunity and peril for a party in disarray seeking to reinvigorate its presence on the national political stage. Done properly, the Republicans could use the upcoming Obama nomination to the high court as a rallying cry and fundraising bonanza, pulling back together its disparate and demoralized ranks while swelling their campaign coffers on the eve of yet another midterm election season ... or the stresses already present within a fractured GOP could reach breaking strain; if pure-minded conservatives go for the throats of party moderates over culture-war social issues regarding the eventual nominee, the whole party could grind itself into shards and tatters like an old, poorly lubed engine.
"Will President Obama's next nominee to the Court help unite the Republican Party to oppose a common adversary," asked Washington Post political blogger Chris Cillizza
last week, "or further expose the rifts that divide it? The retirement of Supreme Court Justice David Souter comes at a time when the national Republican Party finds itself in a state of flux - caught between an establishment wing ... seeking to re-brand it to make it more attractive to independents and a conservative base that wants a return to the roots. Despite the generally optimistic tone adopted by many Republicans, there is obviously real peril present for the party in the Souter situation as well. Recent history suggests a disconnect between the Senate's generally open-minded approach to nominees and the party base's more ideological and confrontational stance - and it is worth watching how that potential dissonance plays out."
Indeed. In some circles, the drums of conservative political war are already beating. "Senate Republicans admit they have virtually no shot at stopping President Barack Obama's pick to replace Supreme Court Justice David Souter," reported Politico.com
last week, "but they see a definite political upside in waging a fight. A small cadre of GOP researchers has already begun scouring the records of Souter's potential replacements - hoping to find a trove of inflammatory legal writings or off-the-wall positions to hang around the necks of vulnerable Democrats in the 2010 midterms."
"Phone lines around Washington began burning this morning," reported
The Hill, "as conservative organizations kicked off preparations for the fight over President Obama's eventual Supreme Court nominee. A group of more than 50 conservative groups held a conference call early Friday to begin plotting strategy, sources on the call said. Groups like the American Center for Law & Justice, the Coalition for a Fair Judiciary and the Committee for Justice will all prepare background research on potential nominees, setting up the eventual, inevitable attacks on the nominee as a left-wing extremist."
Win or lose, Republican strategists and interest groups see a potential fundraising boon coming from the upcoming high court nomination. "Few political battles energize movement conservatives quite like a Supreme Court nomination fight," reported
CQ Politics. "And word that Justice David H. Souter plans to retire at the end of this session sent a jolt through the right-wing fundraising circuit late Thursday night. Abortion, gay marriage, gun rights, school prayer and property rights all converge at the justices' white marble den across from the US Capitol. That should all add up to a lot of money for conservatives who fear that 'activist' jurists will liberalize America's laws - even if the liberal-conservative balance on the court isn't likely to shift - according to fundraising experts."
The devil, as ever, is in the details. Senate Republicans face near-certain failure if they attempt to filibuster an unsatisfactory (to their base) nominee, even with Al Franken's seat still unfilled and new Democrat Arlen Specter still voting with his former GOP allies. If they don't at least try, however, there could be an angry ideological uprising on their right flank that could finish what three straight electoral defeats began and lead to the total, final collapse of the Republican coalition.
"With the further elevation of conservative voices within the party - hello Rush Limbaugh! - it's not difficult to see a further fracturing of the GOP if Obama picks a Supreme Court nominee with whom the base is deeply unhappy but the establishment wing of the party (including a majority of Republican senators) believe is acceptable," continued Cillizza. "Limbaugh himself said that Republicans will do 'the right thing for themselves any time they attempt to contrast themselves with Obama.' A split within the GOP on the nomination, which could feature movement conservatives like Alaska Gov. Sarah Palin and South Carolina Gov. Mark Sanford on one side and establishment figures like former governor Mitt Romney and Minnesota Gov. Tim Pawlenty on the other, would be something close to an unmitigated disaster for a party trying to united behind a few core principles to prepare for the 2010 midterm elections and the 2012 presidential fight."
Chaos is, perhaps, unavoidable on this one. President Obama and congressional Democrats have no choice but to dive head-first into the situation; a vacancy on the high court represents an opportunity for change virtually unparalleled in American governance that no administration can sleep on. Besides, the simple fact is they won all the offices charged with the responsibility of shepherding new justices onto the bench, and so are required to roll up their sleeves, pick a nominee, and make sure whoever is chosen gets past the Senate and all attendant craziness.
Smart money says President Obama, with the well-informed guidance of former Judiciary Committee chairman and current Vice President Joe Biden, will likely nominate someone akin politically to Souter, someone with the proper credentials and no landmines on their resume, someone who has already been thoroughly vetted to avoid any unpleasant surprises. If madness can be avoided, replacing Souter on the bench will serve the administration as a helpful tune-up for the moment when another Supreme Court Justice, or two, or three, decide as well to step down. This is politics, this is Washington, and these are Democrats, however, so anything is possible; a bad pick could bring on the kind of bloodbath that might very well cripple the new administration, sour the public mood, and breathe new life into the Republican Party.
For the Republicans, on the other hand, this situation is reminiscent of the Russian roulette scenes from "The Deer Hunter": it's a deadly game; they'd be well-advised not to pull the trigger, but despite every demonstrable danger involved, you just know the hammer on the gun to their head is going to fall. They could win, they could dry-fire, or they could turn their own lights out with a wham and a splatter.
Stay tuned.
.JPG)
