Over the weekend, I had an eye-opening conversation about the views of our Republican friends vis a vis the imminent Obama Supreme Court nomination. Apparently, there is a meme currently circulating in certain Federalist Society circles that goes a little like this: "If Obama really wants to show that he is committed to bipartisanship, he should nominate one of the G.W. Bush judicial nominees stalled by the Democrats for the Supreme Court vacancy."
I’m not making this up.
Given that this seems to be at least one of the prevailing viewpoints from our Republican friends, I have three points that I think are (or should be) truisms regarding the upcoming Supreme Court nomination fight. They are:
1. Regardless of who is nominated, there will be at least 25-30 Republican Senators who will vote against the nominee.
To the extent that the administration believes that it can find anyone resembling a consensus nominee, I say I’ve got a bridge in Brooklyn that you might be interested in purchasing. Why? Simple – 22 Democrats, including President Obama – voted against John Roberts. The Republicans still believe that it was entirely unprincipled of the Democrats to vote against such an eminently qualified and "non-partisan" nominee as Roberts. Of course, anyone who had paid a modicum of attention to the legal career of Roberts prior to his nomination for SCOTUS knew precisely the kind of lock-step conservative jurist that he would be.
There is simply not a chance that the current crop of Republicans will somehow rise above this perceived "partisan hack job" against Roberts, and not return the favor in kind. McConnell probably already has the commitment of the majority of his caucus to vote against any Obama nominee, for this reason alone. Also, any nominee who even hints that he or she would support a woman’s right to choose is guaranteed to draw substantial opposition. And just think about the current list of Republican senators – what kind of Obama nominee would attract support from the likes of DeMint, Coburn, Brownback, Inhofe, Crapo, and Kyl? (yes, that was a rhetorical question).
2. Specter’s deal requires him to support cloture on any nomination.
Arlen Specter can blather on all he wants about how he will not vote in a lockstep manner with the Democrats. But when it comes time for that cloture vote on bringing the nomination forward, you’re going to hear an "aye" from senior senator from Pennsylvania. Oh, Specter might ultimately "vote his conscience," and vote against an Obama nominee, but there is simply not a chance that the White House and Harry Reid’s office would let him keep his seniority (and with it a likely committee chair) without extracting that pledge from Specter.
Also, if Specter fails to live up to his end of the bargain on the cloture vote, I wouldn’t be surprised to see a DSC-supported primary challenge in Pennsylvania. The twin threats of losing a closed primary and then potentially losing seniority in the Senate if he steps out of line will keep Specter from crossing the White House on any nominee.
3. There will be at least two Republican members of the "Gang of 14" who will not support a filibuster of any potential nominee currently mentioned as a serious contender.
There are still four of the seven Republican members of the "Gang of 14" in the Senate – Collins, Graham, McCain, and Snowe. At least two of these four – and perhaps all four – will not go along with a McConnell led filibuster of the cloture vote on the nomination. Collins and Snowe are the two most likely to stick with their principles, and to find that the prerequisite "exceptional circumstances" don’t exist for any of Obama’s potential nominees. Obama’s potential nominees (such as Sotomayor, Kagan, Sunstein) etc. are simply too qualified for moderates like Collins and Snowe to cast as falling within the "exceptional circumstances" rubric.
As for McCain, there is probably a big part of him that wants to reassert his "mavericky" credentials, and to therefore vote with the Democrats on cloture. A vote with the Democrats could also shore up McCain’s support among Arizona independents in the 2010 cycle (although truth be told, he probably has more to worry about from a potential right-wing primary challenge). So, flip a coin on McCain. If McCain votes for cloture, his lapdog Graham will, too.
So, what to make of all this? Obama should pick whoever he wants from among the many, many excellent candidates he is said to be considering. From the most centrist to the most liberal of those candidates, the results will be the same – unprincipled, ridiculous, and fierce opposition from the Right, a substantial bloc of Republican senators voting "nay," but ultimate confirmation due to Specter’s deal and the last vestiges of the Gang of 14.