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This is what happens…

August 9th, 2010

This is what eventually happens when shortsighted fools use the courts to crush the will of the people:

James Joyner notes that there’s much wailing and gnashing of teeth on the left side of the blogosphere over the relatively narrow margin by which Elena Kagan was confirmed by the Senate:

Jonathan Chait notes that the 63-37 margin by which Elena Kagan was confirmed is “five fewer than Sonia Sotomayor last year, 15 fewer than John Roberts got in 2005 and pales in comparison to the 96-3 coronation of Ruth Bader Ginsburg in 1993.” He wonders, “Is Kagan Obama’s Last Justice?

Bear in mind that, before Obama picked her, Kagan was touted as the consensus pick most likely to gain Republican support. (Ginsburg had been head of the ACLU’s Women’s Rights Project — imagine a nominee like that getting through the Senate today, let alone with 96 votes!)

The Republican pretense that judicial nominees, and judicial nominees alone, should be entitled to a majority vote is a hangover from a tactical position the party took during the Bush era. Republicans “didn’t filibuster” Kagan because they didn’t have 40 votes to stop her. After the 2010 elections, their numbers will almost certainly increase to the point where even a moderate like Kagan stands little chance of clearing the 60 vote threshold.

And this has all taken place in a landscape where Obama has merely been replacing liberal justices with other, possibly less liberal, justices. Can you imagine what will happen if one of the five conservatives retires on Obama’s watch? It’s entirely possible that Senate Republicans will simply refuse to confirm any more justices, period.

Jonathan Bernstein sees a “real train wreck, a total stalemate” ahead:

The obvious question is: what would have happened if there were only 52 or 53 Democrats in the Senate, or for that matter 48 or 49. Elena Kagan appears, by all accounts, to be a mainstream Democratic nominee; she certainly wasn’t on the short list of liberal advocates, although she was broadly acceptable to most of them. Can any Obama nominee be confirmed to the Supreme Court next year? The problem here is that compromise is almost impossible to imagine over the Court. Does anyone believe that Thune, DeMint, and the other Senators who may be running for president next year could accept any nominee from Barack Obama? And, after Bob Bennett and the rest of the primaries this year, does anyone believe that more than a handful of Republicans will stand up to the threat of a primary?

Matt Yglesias goes a step further:

The question is sharpened further when we consider that Kagan was appointed to replace probably the most left-wing justice on the court. By most accounts, her ascension will shift the court slightly to the right. Antonin Scalia is 74 years old. Obviously, he’ll try to hold on to his seat until there’s another Republican in the White House but he may not make it. Is there any replacement a Democrat could make for him that would garner bipartisan support? I have a hard time seeing it.

Kevin Drum takes this to its logical conclusion:

So what happens if this becomes institutionalized? It means that no president with a Senate controlled by the opposite party will ever be able to place someone on the Supreme Court. So then what? Perhaps the new norm will become automatic recess appointments without even the pretense of a Senate hearing. And since recess appointments only last through the end of a president’s term (assuming he continually reappoints his candidates at the beginning of each new Congress), this would place a premium on justices resigning only when a congenial president is in office (already a well accepted norm) and doing it early in his first term in order to give the new folks at least seven or eight years on the bench. Keep this up for a couple of decades, and you’d essentially end up with a system in which incoming presidents replaced virtually the entire court during their first year.

Joyner goes on to argue that all of this is somewhat “overwrought.” Go read the whole thing.

My own take on this issue is that the left has no one to blame but itself. It was the left that made Bork into a verb. The modern mess that is the Supreme Court confirmation process began when the left decided to block Robert Bork’s nomination on solely political grounds.

The deeper problem, of course, is that since the Warren Court era the left has routinely turned to the Supreme Court to achieve results by judicial fiat that they could not achieve through the political process. As liberal Democrat Judge Abner Mikva observed:

You can’t write a justice of the Supreme Court and say “Vote No.” You can’t even picket at the Supreme Court, though they tried to. There is a frustration that these five or six people, unelected, had made this basic decision which had been the subject of political process for so many years before. The justices were surprised. The late justice Blackman expressed his shock at how angry the minority was with the decision. I could have told him that was going to happen. And in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states — not all of them, but in most states — and we wouldn’t have had to pay the political price we’ve had to pay for it being a court decision.

It was the left’s success at using the courts to preempt the political process that turned the confirmation process into an ideological war. So the present bitching and moaning moves me not one iota.

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  1. Leo
    August 11th, 2010 at 09:18 | #1

    If the judiciary becomes one of the political branches, this is inevitable. If I were a Democratic political strategist, I would want the whole issue to go away. This is not a winning issue for Democrats, and the Walker decision is a formula for a huge culture war.

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