September 15, 2009

Trouble Ahead for Obama Nominations

In an article that otherwise reads much like a White House press release, Jeffrey Toobin’s piece in the September 21 New Yorker gives conservatives several reasons for cheer about the judges issue. Toobin’s main themes are that President Obama has embraced the notion of judicial restraint, has “distanced himself” from activist Justices like William Brennan and Thurgood Marshall, prefers pragmatism to ideology in selecting judges, and intended the Sotomayor nomination to be a “post-partisan choice.” Rather than focus on the trouble we have buying Toobin’s spin, we’ll go right to the reasons for cheer.

First, Toobin’s observation about this summer’s Sotomayor hearings:
“Sotomayor’s words amounted to an acknowledgment that conservative rhetoric, if not conservative views, had become the default mode for Supreme Court nominees. In the hearings of … Ginsburg and Breyer … both candidates said, essentially, that the meaning of the Constitution had evolved with the times. … Sotomayor and the Democratic senators who supported her portrayed a much less dynamic process of constitutional change.”

This largely mirrors the “huge silver lining” we found in the Sotomayor hearings:
“[T]he living Constitution is now dead as a defensible judicial philosophy outside academe. No doubt judicial activism will live on surreptitiously in the courts, but it is doubtful we will ever again see a Supreme Court nominee who has openly espoused it, no less one willing to defend it during their confirmation hearings.”

Toobin also comments on Dawn Johnsen’s stalled Justice Department nomination and the long delays in confirming Obama nominees Cass Sunstein and Harold Koh to OMB and the State Department respectively. Toobin concludes that
“The trouble that these outspoken [liberal] academics have had in winning confirmation for Administration posts offers another augury of major battles ahead if Obama nominates any of them, or anyone like them, for judgeships.”

The problems encountered by these nominees reinforce a point we have been making all year, namely that all it takes to put an Obama nominee in serious jeopardy is the opposition of a few red or purple state Democrats. This point is especially true for judicial nominees, who are given less deference by the Senate than executive branch nominees like Johnsen, Sunstein and Koh.

Conservatives should also take heart from Toobin’s endorsement of a point made by law professor David Strauss:
“The Republican coalition cares a lot more about [the courts] at this point [than the Democratic coalition], because [Republicans] want the Court to change on issues like abortion, affirmative action, school prayer, gun rights. If the courts stay right where they are, that’s fine with the Democrats.”

Combine that point with Roll Call’s observation yesterday that, if there’s a Supreme Court vacancy next year – a high probability given Justice Stevens’ decision to hire only one clerk and Justice Ginsburg’s illness – “it would not only dominate Beltway politics, but also serve as a major topic of the 2010 midterm elections.” Together, these two points mean that the judges issue is likely to favor Republican turnout and otherwise be a winning issue for the GOP in 2010.


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