Posted by: Jeff | April 9, 2010

Pick a Fight This Time

Reacting to Stevens’ retirement announcement, Ezra Klein riffs off Matthew Yglesias to suggest that Obama nominate a replacement with political and legislative experience, as opposed to only legal experience.

As Matt Yglesias writes, “this is one of these things that pundits say not just because it makes for an easy column topic but also because it’s actually true!” It’s not just that the Supreme Court is a politicized court. It’s also that it spends a lot of time dealing with questions of legislative intent, a discussion that would be undoubtedly enriched by a knowledge of, well, legislating.

You can go on and on with the reasons here. You can also just name off some of the legislators who’ve served on the Court: Hugo L. Black, a former senator; Earl Warren, a former governor; Sandra Day O’Connor, a former state legislator; John Marshall, a former representative. Suggesting that there should be some political experience on the court is not a break with tradition. Moving away from political experience on the court is.

Yglesias himself goes on:

The Supreme Court is a substantially political court. The whole discourse and atmospherics around the way Court nominees are currently selected and confirmed has become a terrible farce, and the pretense that it’s just about picking people who are really good at looking up what the law is in books is a big part of the problem.

As Joe and I argued in our podcast, the politicization of Supreme Court nominee hearings is a pretty good reason for simply doing away with the hearings entirely. But I’m also in agreement with Yglesias that, so long as we’re going to keep the hearings, continuing to encourage “this isn’t political” kabuki theater on the part of both the nominees and the Senators does no one any good.

I would also second Klein’s logic for why Obama shouldn’t bother going with a moderate:

President Obama could nominate the guy on the Quaker Oats box and Glenn Beck would find a way to connect him to Trotsky on his blackboard (“you know who else liked oatmeal!?”). Moreover, the GOP will enthusiastically help him on that one. Midterm elections are about base mobilization, and nothing is better for base mobilization than an asymmetric Supreme Court fight in which, say, evangelicals are furious about the nominee and liberals are skeptical (which you’re already seeing in the early reaction against Elena Kagan).

…the conventional wisdom that Obama should avoid a fight here might be wrong. He’s likely to get one whether he likes it or not, and the question is more whether it’ll be a fight that his supporters want to be part of.

On top of that, with a solid block of four hard-core conservatives on the court, the last thing we need to do is give the institution any wiggle-room to move farther right.


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