Initial reaction in Washington to reports that Justice David Souter will retire next month has been interesting: what a pain in the butt for an overstressed Obama administration! Indeed, says the Washington Post’s Chris Cillizza, the court opening “could well sidetrack other legislative priorities of the administration.”
Well, sure, choosing a Supreme Court nominee and managing her or his confirmation campaign is, to use George W. Bush’s favorite phrase, “hard work.” Just like any president, Obama will have to deal with expectations of a female, or a Latino, or a “progressive” or “centrist” Justice, and with the peculiar personal investment some of his own friends may develop over the prospect of a lifetime appointment to every lawyer’s dream job.
But I strongly suspect that the Souter retirement will create far fewer problems for Obama than for his opponents, and particularly for the increasingly marginalized Cultural Right, which will likely make any confirmation fight its own Tea Party Moment.
From a rational point of view, of course, the Souter retirement probably won’t change the shape of the Court in any major way: a veteran “liberal” will be replaced by a younger “liberal,” and conservatives don’t have the votes in the Senate to do anything about it.
The Supreme Court, however, is not a rational subject for the Cultural Right, where it assumes vast, mythic proportions as the top tier of a federal judiciary blamed for all sorts of destructive havoc, most notably the legalization of abortion.
To understand how your average right-to-life activist looks at this, remember that this was supposed to be the moment, had the right candidate won the 2008 elections, when the long-awaited fifth vote on the Court to overturn Roe v. Wade, and end the “holocaust” of legalized abortion, finally became an imminent prospect.
And to understand how the very mention of David Souter inflames right-wing culture warriors, remember that the reversal of Roe was supposed to happen in 1992, when the Court instead, by a 5-4 margin, reaffirmed the constitutional right to a abortion in the Casey decision, with Bush 41 appointee Souter, the famous “stealth liberal,” shocking many by siding with the pro-choice plurality. The Souter experience has weighed on conservative legal activists ever since, and was a key factor in the successful right-wing revolt against Bush 43’s effort to appoint Harriet Miers–not a known quality on the abortion issue–to the Court in 2005.
In the days just ahead, memorials to Souter’s service on the Court will be an embittering factor for those who view him as an especially insidious enabler of mass baby-killing: a Republican who disguised views that would have denied him confirmation.
And to the many organizations of the Cultural Right–in the midst of a long losing streak, treated with contempt by many Republicans, and recently taking a back seat even among “movement conservatives” to crypto-libertarian outrage about federal spending and taxes–the prospects of a Supreme Court confirmation fight over the successor to the hated Souter will be absolute catnip, and an unequalled opportunity to raise money and boost membership and morale.
Their immediate objective will be to force Senate Republicans to commit to a filibuster of any objectionable nominee. The Senate GOP has already threatened to filibuster lower-level Obama judicial appointees if he doesn’t respect their traditional veto powers over judges in their own states, making a mockery of Bush-era conservative arguments that such filibusters are unconstitutional. It’s a relatively small step to organize a filibuster against a “divisive” Obama Supreme Court nominee. And such a campaign would nicely serve as a litmus test to separate the sheep from the goats in the GOP, and to demonstrate the continuing power of the Cultural Right.
The opening skirmish, of course, will come in the form of demands from all sorts of directions that Obama appoint a “noncontroversial” Justice, which from the point of view of the Right would mean someone who disagrees with the president’s own well-honed constitutional views.
Once Obama announces a choice, however, the gloves will come off, and years of cultural conservative frustration over the Court will come flowing out, with no cohesive Republican Party or conservative movement to channel and control it. It could get very, very noisy, and very, very ugly, very very fast, particularly if Obama appoints, as he undoubtedly could, an “out” lesbian to the Court.
Maybe this is a premature prediction, but I’d bet the Cultural Right is about to undertake its version of the Tea Parties this summer and fall. And given the configuration of forces in the Senate and the country, the likely victim will not be Barack Obama or his Court nominee, but a Republican Party whose coalition is becoming unglued in every sense of the word.