SCOTUS Vacancy: Filibuster, Vets & Napolitano

Byron York reports in yesterday’s Examiner that

“there is one particularly pressing reason Democrats would like to see [Justice] Stevens go now rather than later. That reason is coming up this November. ... continued Democratic rule with a smaller majority would give the president less flexibility in choosing a successor to Stevens.”

While we agree with York that Democrats would prefer that Stevens retire this year, we disagree with York’s conclusion about a confirmation fight this year:

“If [it were to] take place before November, there would be virtually no chance of a filibuster no matter how extraordinary the circumstances. With 59 votes, Democrats would need just one Republican to join with them to reach a filibuster-proof 60 votes. ... So the calculation for Democrats is this: With 59 votes, the president can nominate anybody he wants.”

In light of Republican resentment at the procedural shenanigans Democrats engaged in to pass the healthcare bill, we suspect that there is far more than “virtually no chance” of keeping all 41 GOP senators together on a Supreme Court filibuster vote. In any case, they key to stopping particularly bad Obama nominees has been and will continue to be red and purple state Senate Democrats, whether the nominee is stopped by a filibuster or before a vote on the Senate floor.

For an example of the former, look at Obama’s recent recess appointment of Craig Becker to the National Labor Relations Board. Obama was forced to forgo Senate confirmation after Democratic Sens. Ben Nelson and Blanche Lincoln voted against cloture. For an example of the latter, consider Dawn Johnsen, President Obama’s nominee to head the Justice Department’s Office of Legal Counsel. Despite being nominated more than a year ago, the opposition of a couple of red state Democrats has been sufficient to prevent Majority Leader Reid from bringing her nomination to the floor.

Finally, consider that the nomination of Harriet Miers to the Supreme Court was withdrawn after senators in President Bush’s own party told him they couldn’t support the nominee. Similarly, the opposition of a few red state Senate Democrats this summer would likely be sufficient to stop a Supreme Court nominee before any vote on the floor. All the more so because vulnerable Democrats like Blanche Lincoln will be actively looking for opportunities to distance themselves from the President and their more liberal Democratic colleagues. In sum, it is far from true that “the president can nominate anybody he wants.”

Especially in an election year, Obama will also be constrained by his demonstrated desire to keep the focus off of the hot-button social issues that a controversial Supreme Court nominee will inevitably stir up. “I don’t think Obama was ever anxious to have the debate be about guns, gay marriage, and partial-birth abortion, and is even less so now,” said CFJ Executive Director Curt Levey in Politico. But not all the people interviewed for the Politico article agree: “some liberal activists hope that Obama will swing for the fences and name an outspoken progressive to the court this time.”

In contrast, there seems to be a consensus that the Supreme Court chances of Homeland Security Secretary Janet Napolitano, one of the finalists to fill last summer’s High Court vacancy, have evaporated because of Obama’s reluctance to make the “underwear bomber” incident part of the debate. Politico reports that “Both liberal and conservative advocates agree that choosing her now would refocus what the administration would view as unwelcome attention on government failures prior to the Christmas Day airplane bombing attempt.”

The consensus that Napolitano has “dropped from Obama’s short list” likely reflects a realization that Obama feels vulnerable on national security, even more so than on social issues. Which makes it all the more interesting that, last Friday, long-time conservative leader Phyllis Schlafly called on senators to demand that Justice Stevens, the last military veteran on the High Court, be replaced by another veteran:

“For as long as we can remember, the U.S. Supreme Court has included at least one military veteran. ... When President Obama fills Stevens' seat, will the High Court be left without anyone who has military experience? Veterans in the U.S. Senate should make sure that such an embarrassment does not occur. Cases concerning the military appear every year before the Supreme Court, and our nation will not be well-served by a Court lacking in military experience. ... The men and women who risk their lives for our nation's security deserve better.”

We agree and so does Justice Stevens. From Stevens’ interview with Jeffrey Toobin in the New Yorker last month:

“‘Somebody was saying that there ought to be at least one person on the Court who had military experience,’ Stevens told me. ‘I sort of feel that it is important. I have to confess that.’ The war helped shape his jurisprudence, and even today shapes his frame of reference.”

President Obama promised to appoint judges with “the empathy to recognize what it's like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old.” He would be hard pressed to explain why it is not equally important to have a Supreme Court Justice who knows what it’s like to serve in the military, not to mention a Justice with the military experience necessary to understand and evaluate the government’s national security arguments.

President Obama’s judicial appointments – from Sonia Sotomayor down to circuit and district court nominees – tell us that he places a high value on racial diversity on the federal bench. Let’s hope that Obama’s next Supreme Court pick indicates that he also places a high value on military service.