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  •  Imagine a world in which Bork was never confirmed (2+ / 0-)
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    skohayes, Into The Woods

    Oh, wait... we don't have to imagine it.  Bork was Borked.  

    We ended up with Justice Kennedy instead, who is obviously no Brennan, but light years better than Bork, who, among other things, is a repulsive bigot who believes that gay people are committing bestiality and would have been the fifth vote to overrule Roe v. Wade.

    And, in this not-so-imaginary world in which Bork was never confirmed, Democratic presidents subsequently nominated, and got confirmed, four very acceptable nominees including Elena Kagan.

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    by MJB on Mon Jun 27, 2011 at 03:11:06 PM PDT

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    •  We got lucky on Kennedy. Third choice. (0+ / 0-)

      Lest we forget Doug Ginsburg, who'll come up again in my next FP story.  Of course, we mostly got lucky because Warren Rudman and John Sununu insisted on David Souter's conservative bona fides.

      Kagan seems like an "acceptable" justice, certainly, but no one now is as liberal as the conservatives are on on the other side of the Court.

      •  The conservatives are more conservative... (1+ / 0-)
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        ... because the Republicans aggressively challenge a Democratic president's right to nominate whomever he chooses.  

        In choosing SCOTUS nominees, Democratic presidents are constrained by Republican aggression and by the media carrying water for the Republicans.  GOP presidents are not so constrained, in fact it's the opposite -- they are often pushed by their own allies into choosing the farthest-right candidates imaginable, e.g., the replacement of Harriet Miers with Samuel Alito, with no effective pushback from the Dems.

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        by MJB on Mon Jun 27, 2011 at 03:24:20 PM PDT

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        •  Actually, it's for a deeper reason (1+ / 0-)
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          Conservatives have a better bench than we do; Clinton didn't nominate young progressives the way Reagan and the Bushes did, and Obama didn't get confirmed the one progressive he did nominate (Liu).

          •  There are some very good Clinton appointees (1+ / 0-)
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            on the Court of Appeals now.  

            Maybe none are ideologues like the kind that GOP presidents try to put on the bench, but there are more than enough for Obama to have had several good options -- some of which were named as possible nominees -- when Sotomayor and Kagan were ultimately chosen.  Many on this site argued that some of the other possibilities had better liberal credentials than Kagan.  The GOP noise machine certainly intimated it might strongly oppose a SCOTUS nomination for a judge with a clearer progressive record such as Diane Wood.

            So I don't think you can say that Democratic presidents don't have enough progressive options to choose from, but for sure the external forces discourage them from choosing nominees with stronger progressive records, while the external forces encourage GOP presidents to choose nominees with unquestionable conservative credentials.  

            And that is partly the fault of the Democratic side of the political spectrum for not exerting the same adverse pressures on GOP presidents that conservatives exert on Democratic presidents.  As on many other political issues, our side all too often brings a butter knife to a gun fight.

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            by MJB on Mon Jun 27, 2011 at 04:21:42 PM PDT

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