Impending Stevens Retirement: Time to Pick a Fight

In preparation for the 2010 midterms, President Obama should nominate someone to the Supreme Court who will send the GOP base into full mouth-froth mode.

Marc Ambinder reviews the administration’s planning around the expected retirement of 89-year-old John Paul Stevens from the Supreme Court.  His conclusion: “Obama’s not looking for a fight.”

If this is true, it’s hard to see why.  Ambinder suggests that

Obama and his team are well aware that judicial confirmation battles almost always excite Republicans and confuse Democrats. They are also well aware of the particular political constraints imposed by the 2010 election.

This seems to me to be exactly backwards.  The Republican base is already riled up to such a fever pitch that it’s impossible to get them more ready to go to the polls.  So the task for the midterm election is to get the Democratic base riled up.

In a perfect world, you’d get the Democratic base riled up, with independents wondering why the Republicans are acting so crazy.  That’s why I have suggested someone like former Stanford Law Dean Kathleen Sullivan, who is one of the leading constitutional scholars in the country, but is also openly gay.  The right-wingers would go nuts, but watching Sullivan testify, true independents would wonder what all the fuss is about.

Now, of course, as Ambinder correctly notes, Obama himself is a student of the court, and has his own strong substantive ideas about what is required in a justice.  But here, he can have his cake and eat it, too: there are lots of scholars, political figures, and jurists who would fill those credentials but also inspire the base.

This is one of those interesting times where politics is not a zero-sum game.  The GOP base wants a fight, and so should Obama.  As the President himself might say, Bring It.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

9 thoughts on “Impending Stevens Retirement: Time to Pick a Fight”

  1. Would independents really accept a lesbian on the Supreme Court? I'd like to agree, but I'm not sure we are there yet. Democrats running for president still have to pretend they oppose gay marriage.

    Inspired idea, though. And yes, the Republicans heads would explode.

  2. It's going to be fun: Both sides are in agreement that this is the time to pick a fight. But Stevens better retire awfully soon, or you're going into that fight handicapped by the midterm results. If the retirement comes close enough to the elections, Republicans will have a plausible excuse for just digging in and obstructing everything until the new Senate takes over.

    Stevens seems to be more in the "During Obama's first term" mode, than "Sometime in the next couple of months" mode.

  3. One bad thing about Sullivan is that opponents would be able to make an awful lot of hay out of her having failed the CA bar exam a few years ago. I don't think it's that big of deal, but it would certainly be a major distraction and allow an air of credibility to be placed around other complaints about her.

  4. I wonder whether Stevens' comments were intended as a signal to Senate Democrats to use the opportunity that they will have next January when the new Senate convenes (unless Republicans regain a majority of the Senate, which is unlikely) to reform the Senate rule regarding cloture. That happened following the 1974 election, when the prior rule requiring two-thirds of those present and voting for cloture was modified to the present sixty vote rule. It can and should happen again.

  5. Jonathan Turley is pessimistic:…. I think he's probably right to be. Obama is not a liberal; he is a bipartisan (perhaps the only one besides Rahm Emanuel in America). Even if he were inclined to nominate a liberal, he would make a preemptive concession to the Republicans, despite knowing that they would filibuster Robert Bork if he were to nominate him.

  6. Any Obama nominee would provide a fight. The politics of Supreme Court nominations are mostly about abortion. No Democratic President would appoint a pro-life nominee; few Republican Senators would accept a pro-choice nominee. Even the moderate conservative Sotomayor provoked a fight.

    So if you're going to have a fight, you may as well have a good one.

  7. Brett, retirements are usually announced at the end of the term.

    I guess lots of people have their own lists. I'd be pretty surprised in the President ends up sending in a nomination of someone not now serving on a Court of Appeals.

  8. I think John in Nashville has it. I'm not even sure Jay Bybee could get past a filibuster if Obama nominated him. I wonder if we'll start seeing some moderate republicans put up for judgeships in the next few months, just so that a GOP filibuster can be used to provide cover for a rules change.

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