The word coming out of the administration and Democrats in Congress is that President Obama would like to avoid a big fight over his next Supreme Court nominee. And indeed, the emerging conventional-wisdom shortlist reflects the desire for a nominee who can win smooth confirmation from the Senate.
The names that keep popping up are Solicitor General Elena Kagan and federal Appeals Court Judges Diane Wood (of Chicago) and Merrick Garland (of District of Columbia). One less-mentioned name who is still a possibility is Homeland Security Secretary Janet Napolitano.
As Stuart Taylor Jr., hardly a liberal ideologue, wrote recently, “It would be hard for Senate Republicans to justify or sustain a filibuster against any of these four, based on what’s known about them. Indeed, Kagan, Garland, Napolitano, and arguably Wood have less problematic paper trails than Sotomayor, whom the Senate confirmed last summer on a 68-31 vote, with lots of complaining but no filibuster.” Indeed, if anything, the picks might be too safe for some on the left. The emergence of Kagan as a frontrunner has already led to some howls of outrage from some progressives who see her as much too accommodating to conservative and centrist views and want a more combative liberal to replace John Paul Stevens.
Bet on Obama to (as usual) block out the noise from the fray in making his selection and pick someone safe. But bet on this as well: whomever he taps will inspire a loud clamor from conservatives, both in the base and on the Hill.
Kagan may very well be the most qualified of the possible nominees (I haven’t studied all their records). But forget about her moderation cooling the temperature over the Supreme Court debate. The right has perpetuated a narrative that simply doesn’t allow for the idea of a moderate progressive. Anyone to the left of Scott Brown (and that might be too generous) is suspect, an enabler of the “most radical administration in American history.” Besides, a Supreme Court fight is the kind of thing fundraisers and the rank-and-file live for. By the time the Beck-Palin-Rush crew is done with Kagan or any Obama nominee, they will be a lightning rod anyway. And, just as with health care, the likelihood is that the left will rally around the nominee once they see the right flip out over it.
This isn’t to say that Kagan wouldn’t win confirmation. All of the four mentioned above are confirmable. But a rancorous debate is probably unavoidable. It’s simply where we are right now. Nate Silver writes, “One other dynamic to watch out for: whether the partisan split on Obama has become so entrenched that whomever he nominates will start out with 35 percent disapproval.” I’ll take the over.
