May 01, 2009

Obama's Pick: High Risk, Low Reward

The announcement that Justice Souter will be stepping down at the end of the term, while not a total shock, certainly focuses the attention of the nation on the Court.  But what does his retirement mean?  Will his replacement shift the Court?  

Justice Souter was firmly encamped in the Court's left wing so replacing him affords Obama a high risk, low reward pick.  Any pick that turns out to be to the right of Souter is a net gain for conservatives because, at the age of 69, Souter could have easily stayed on the court for another 15 or so years.  Ed Morrissey has more along this line:
Expect much wailing and gnashing of teeth by conservatives over Souter’s potential replacements, but the real problem falls on Barack Obama.  Despite his appointment by George H. W. Bush, Souter reliably stuck to the liberal side of the court, and his surprise retirement gives Obama little chance to change the court.  It does provide him with a raft of headaches ... 

Obama’s headaches come from this same dynamic.  He will face many competing pressures in selecting a replacement.  Supreme Court picks are high-profile affairs, and this will test Obama far more than his previous appointments — many of which have been disasters, like Tim Geithner, Tom Daschle, and the rest of the tax-evaders and lobbyists he’s picked.  Hispanics will want a representative voice on the court, and women will want to gain back the second seat that they lost with Sandra Day O’Connor’s retirement.  Blacks might expect Obama to appoint another African-American.  Meanwhile, in the Senate, Obama will be expected by some to play the bitter partisan game that has existed ever since Ted Kennedy kneecapped Robert Bork, and expected by others to pick someone in the middle ground to end those games.

The biggest tension will come from the far-Left activists of Obama’s party.  They’re losing a stalwart.  They can’t afford to have Souter replaced by a middle-ground justice who may not vote as reliably liberal as Souter.  In fact, that will be Obama’s problem for all of the likely retirements on the Court — Ruth Bader Ginsburg and John Paul Stevens.
Make no mistake about it, Obama is going to attempt to appoint a far-left judge, but that is exactly what Souter was.  If the GOP can in any way moderate Obama's nominee  or Obama's nominee turns out to be a Souter-in-reverse then it may tun out to be a net gain for conservatives, if only a slight one.  Even if it doesn't work out that way, the dynamic of the Court is unlikely to change.

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