From any purely rational point of view, you wouldn’t expect the Republican Party to invest all that much in a fight with President Obama over his nominee to replace Justice David Souter.
The retiring Justice is, after all, considered part of the current Court’s left wing, and is regarded as the Great Judas by many conservatives; how much worse could Obama do? Republicans are down to 40 seats in the Senate, and even if they had the votes to filibuster a Court nominee, they are estopped from doing so by the vast outpouring of rhetoric they deployed against judicial confirmation filibusters when Democrats threatened them during the Bush administration. And above all, a big nasty confirmation fight that they can’t win would represent a large distraction from the GOP’s other goals, most preeminently an effort to derail implementation of the Obama budget in general, and health care reform in particular.
But we’re not talking about people who are necessarily in a position to be purely rational right now.
As I’ve already argued, Republicans are going to be under intense pressure from the cultural-religious wing of the Right to fight Obama’s nominee, whoever it is, with at least as much fervor as they exhibit in fighting Obama’s economic agenda. It’s a simple matter of equal treatment: the Culture Right needs its own Tea Party Moment–its own expression of rage at having its hopes (in their case, hopes for a fifth vote on the Supreme Court to overturn Roe v. Wade) dashed by the election of Barack Obama, and its own validation that it remains an indispensible pillar of the post-Bush Republican Party that cannot be trifled with. And frankly, given the donor-dampening economic climate, the Cultural Right, like everyone else in politics or issue-advocacy, needs a fundraising cause, and as CQ’s Jonathan Allen explained last week, nothing loosens the conservative pursestrings quite like a Supreme Court fight.
From the initial noises they are making, however, it doesn’t look like Republicans are going to have to be dragged kicking and screaming into this fight; they’re eager to be thrown into the briar patch. They are leaping upon the president’s passing remark that he wanted a Court nominee who exhibits “empathy” as a reason to denounce his choice in advance as representing a dangerously radical agenda of “judicial activism.”
On one Sunday show yesterday, Sen. Orrin Hatch, widely considered the Republican leader most likely to play ball with the president on a Court appointment, dutifully intoned:
[I]t’s a matter of great concern. If he’s saying that he wants to pick people who will take sides — he’s also said that a judge has to be a person of empathy. What does that mean? Usually that’s a code word for an activist judge.
Funny that Hatch talked about code words, since “activist judge” is perhaps the ultimate code word for any jurist who doesn’t harbor some sort of originalist fantasy of channelling the Founding Fathers. To big elements of the Cultural Right, “activist judge” has an even more specific meaning: anyone who supports a constitutional right to an abortion, or perhaps thinks that “equal protection” applies to gays and lesbians.
On another show, Mitt Romney, who may well be the front-runner for the GOP presidential nomination in 2012, was even more emphatic about the likelihood of a Court fight.
“The place where I think we draw the line is: Is this an individual who will follow the Constitution and the law, or is this an individual who believes in making the law,” he said. “If it’s the latter, I think we should stand up and scream long and hard.”
Well, we all know where that line is going to be drawn, regardless of the exact identity of the president’s nominee.
I can’t really recall the last time a credible national political figure promised to “stand up and scream long and hard” about anything. But that’s what passes for a presidential temperament among conservatives these days, and that’s why we’re probably going to see a toxic confirmation fight.