When news broke last week that Supreme Court Justice David Souter was set to retire, much media attention seemed to focus immediately on two questions: a) who would Obama nominate to replace him and b) what would be the political consequences of any given selection (otherwise known as “will Obama get his man, or woman, through, and if so, how cleanly”). The first question will be answered in due course by Obama himself (or maybe a clever reporter capable of prying it out of Rahm Emanuel). The second question seems like a relatively simple one to answer: As it stands, there are 59 Senators who caucus as Democrats in the Senate (should Al Franken be seated, the Democrats will have a bulletproof 60 votes), and it is basically inconceivable that even in fairly extreme, and dire, circumstances any of them would vote against Obama on something like a judicial appointment. That automatically means that whoever Obama nominates will be approved by the Senate by a bigger margin than Justice Alito and Justice Thomas. So, unless Obama’s nominee is discovered to have had major league tax problems (like Tim Geithner), or worse, my suspicion is that he will be able to appoint whoever he wants and guarantee himself a result that will be hard to describe as anything other than a clean “win.” The more interesting question, therefore, at least in my mind, is what the Souter retirement, and Obama getting the opportunity to nominate a new Supreme Court Justice so early on means for Republicans and conservatives—a question that I think is arguably more complicated, but one that White House advisers will be considering since its answer can potentially guide Democrats, and Obama, to strengthening their/his hand(s) even further.
Let’s start with the recognition that nothing excites the conservative (and social conservative, in particular) base of the Republican Party, many of whom write the checks and provide the volunteer manpower that have enabled the party and its candidates to win in the past, quite as much as the issue of the Supreme Court—and how it is comprised, how it behaves, and who is nominated to it. It is exceedingly unlikely, in my estimation, that Obama will end up with this particular nomination (whoever it is) being reverse-Borked. But it is likely that a fight is about to ensue, anyway. In fact, depending on what your definition of a “fight” is, there may already be one underway. The conservative (and influential) Judicial Confirmation Network issued a statement yesterday from its Chief Counsel, Wendy Long, blasting “radicals like Diane Wood, Sonia Sotomayor, and Elena Kagan.” (One only need to consider that Michigan Gov. Jennifer Granholm, whose name has also been in the mix, is apparently traveling to Missouri tonight to speak at Truman Days, which Sen. Claire McCaskill calls “our big Demo dinner in Kansas City,” to imagine what criticism JCN might have of her, were she put forward; my guess is the words “Democratic politician” would be easy to throw about in relation to a nominee for a job that is supposed to involve the impartial dispensation of justice). And there are signs of conservative groups focused on the Court, generally, mobilizing already to try to block or create major obstacles to a non-centrist appointment (a centrist appointment being about the best these groups can hope to get, given who occupies the White House, and something that would be an improvement from their perspective over Souter himself). So, unless Obama nominates someone like Arlen Specter (a suggestion which has been thrown out in apparent seriousness by at least one senior aide to a major conservative group focused on the forthcoming nomination)—or indeed someone more conservative— expect to see major attention devoted to nixing, or at least generating significant Senate opposition to, his nominee, on the part of conservatives.
One consequence of this that I would anticipate, initially, is a massive upstep in activity, specifically with a heavy online focus, on the part of opposition conservative groups, aimed at rallying and organizing the troops, so to speak, to ensure that an effective “no” campaign can take shape and exert its influence as soon as Obama’s nominee is announced. It’s worth noting, in this regard, that several very sizeable email lists dominated by conservative subscribers now exist and potentially could act as a great vehicle for those opposed to the forthcoming nomination to communicate with individual citizen-activists ready and willing to communicate with elected officials on anything and everything “conservative.” The American Family Association’s list appears to comprise something in the range of 2 million subscribers at present; the Human Events email list comprises about 1 million subscribers according to Eagle Interactive’s Conservative Advertising Network; Newt Gingrich’s American Solutions garnered more than 1 million signatures on its 2008 “Drill Here, Drill Now, Pay Less” petition; other lists, such as those maintained by Charisma magazine, are said to run into the hundreds of thousands.
Meanwhile, Hucksarmy.com, the online, nationwide, grassroots effort that helped propel and bolster ex-Arkansas Gov. Mike Huckabee’s 2008 presidential campaign (which was decidedly less well-funded than that of many of his rivals) still maintains its online presence. Notably, as of 7:00pm today, the Hucksarmy discussion forums contained eight different posts from the past 48-or-so hours featuring the term “Souter,” with four posted since 3:00pm on Friday:
It is not far-fetched to suggest that, were Obama to nominate an obvious and objectionable liberal to the replace Souter, the Hucksarmy community would take an interest—and it’s worth remembering that this is a community with a history of delivering tangible political results, where engagement occurs. One effect of this could be that conservatives, and social conservatives in particular, get an opportunity to step forward and assert themselves as effectively being able to leverage new media and online communications tools (something more libertarian-minded members of the right, and liberals, often claim they are either incapable of doing or somehow constitutionally predisposed not to do). Another effect will certainly be to provide the Republican Party with something very valuable that it currently lacks, should elected GOP leaders, in the main or en masse, decide to oppose Obama with regard to this nomination. That something would be actual living, energized, grassroots supporters who number more than, say, three people.
I think it goes without saying that this is something the GOP has lacked for a while. We entered the 2006 election with moderates, independents and libertarians feeling alienated from the party on a number of grounds (corruption and the war being the main two). But what is often missed is that conservatives weren’t all that happy with the GOP at that stage, either. Years of overspending by a Republican Congress, aided and abetted by President Bush whose administration pushed a number of policies that helped expand government massively and who otherwise steadfastly refused to dig his veto pen out of his Oval Office desk drawer, had really dampened the enthusiasm of many conservatives I know. And while I remain a huge fan of John McCain and believe that as President, he would have worked hard to rein in excessive spending—a key conservative concern—I don’t think it’s controversial to say that there were some diehard Republican footsoldiers who were a little unenthused about giving their 110% to help him win last year. (To be fair, there are other groups, not necessarily Republicans, many of whom worked extremely hard to elect him—including, I would highlight, many veterans). Some of those unenthused by McCain got more enthusiastic when Sarah Palin was added to the ticket, but (manifestly) that enthusiasm was insufficient to deliver a win, in and of itself. And now, the GOP finds itself in a position where its members—conservative (as most of the base is), libertarian, moderate, or something in between—find themselves generally displeased with their congressional leadership and wondering what the heck happened and why they should care about the people in charge. As the above should suggest, this is not new. And neither will be a judges fight as the obvious prescription to what ails the GOP as an institution: If there was ever an easy way for the Republican base and its leaders in Washington, DC, to put the “magic back” into their relationship, this would be it. With Obama’s replacement of Souter, the Republican minority has the opportunity to get some of the passion back by getting on the side of groups bashing said “radicals like Diane Wood, Sonia Sotomayor, and Elena Kagan.” And rest assured that while Kagan is arguably the one of these they want the least (JCN decried her “ideological extremism” following a vote in which the vast majority of Senate Republicans gave her a thumbs-down), so long as Obama does indeed employ his “empathy standard” in selecting a nominee, there will be a bashing.
Of course, there will be consequences to this, too—and they might not be all favorable for the GOP, either. While there’s plenty of polling available to show that Americans generally want judges to interpret the law and not legislate, and so on and so forth, if a fight over judges starts looking or feeling like a fight over allowing torture versus banning it, or minority-bashing versus acceptance and inclusiveness—and, as an aside, I’d note there’s a risk of that because the GOP’s ability to effectively communicate and spin is not quite on a par with that of the White House at present—a judges fight could end up ramping up base enthusiasm for the GOP while (further) alienating some voters we’d like to bring back onside. Moreover, as one Democratic strategist said to me yesterday, if the GOP winds up in a situation where all, or all but one or two of its Senators, winds up voting “no” on whoever Obama ultimately does put forward, you can bet on even more campaigning occurring using the “party of ‘no’” theme.
Ultimately, while I personally believe it is the responsibility of the party in charge to govern, set policy and legislate, and the responsibility of the minority party to go along with what is responsible and in keeping with their philosophy (and occasionally, suggest “alternatives”), I also think that the “party of ‘no’” line is not wholly ineffective. At the moment, Obama has a 60%-plus approval rating—it stands to reason that saying “no” to him, especially on something that fits within his remit as President (to nominate, while it’s up to the Senate to “advise and consent” as Republicans reminded Americans for so long), may not be a proverbial hot ticket. That is moreover the case if whoever he nominates is, in fact, well-qualified, and is regarded as such— even if he or she is extraordinarily wrong-headed and objectionable in their judicial philosophy. And the consequences for Republicans, if key swing votes like Sens. Susan Collins and Olympia Snowe, potentially plus one or two more, can be picked off, could be worse insofar as it will bolster Obama’s majority, and make those saying “no” look even more rigid and dogmatic. For conservatives, that doesn’t necessarily matter: They’re almost certainly getting a liberal judge to replace a liberal judge, and any opportunity to test their organizational strength and their ability to influence political debate and lock down what will, barring something very unforeseen, be a majority of Senate Republicans, is gravy. For Republicans, though, it might—but ultimately, it’s a virtual certainty that the GOP will take a fired up base over what could, potentially, be more of the (unappealing) same right now. [intro]