It’s been a while since I’ve written anything here, but I had such a wonderful wicked thought this morning on How Obama could turn this looming Supreme Court nomination battle into his final triumph over the GOP that I just HAD to share.
So right now the situation looks dire: leading Republican Senators from Majority Leader McConnell to Judiciary committee Member Mike Lee, literally did not wait until Scalia’s body was cold before publicly declaring the would not support ANYONE that Obama nominates, and in fact would not even given them a hearing . Moreover there is a strong feeling among even more moderate GOP senators, that ANY cooperation with Obama on this will guarantee them a primary fight, and one they are likely to lose.
Conventional wisdom, therefore, as spouted by the talking heads on all the major networks, is that Obama now has only two choices, both of which will end in failure for the nominee, but may help his party down the road.
The First, they say, is to nominate some absolute centrist, an Obama- appointed judge so uncontroversial that they were unanimously approved or nearly so, when they were last elevated to the bench. This supposedly will then be embarrassing to the GOP when they refuse to confirm a candidate they had previously voted for. Because, as we all know, intellectual honesty and consistency are simply the HALLMARKS of the modern Republican Party.
The Second option, so the pundits pronounce is to nominate a liberal rockstar, like say Senator Warren, who will never even get a whiff of hearing, but whose nomination will so galvanize the democratic base that they will turn out in droves to vote for the Democrats presidential nominee this fall in hopes of getting that person confirmed next year. The Problem with this approach, as I I see it, is that A) they next president is not bound to advance the same nominee, nor indeed even LIKELY to do so. B) Galvanization works BOTH ways, and for every voter WE turn out in hopes a “Justice Warren” there will be fundraising and turn out on the other side using that specter as a threat instead of a promise
There, is, however, a third option; a moonshot of sorts. He COULD nominate a justice that it would be nearly impossible for even the GOP to say “no “ to someone that would do almost as much damage to them by blocking him/her, as they would if they confirm him
Does Such a candidate exist? Honestly I think there is one, and his nomination would be Obama’s final gauntlet thrown down to the GOP, the last gambit of the Chessmaster-in-Chief.:
Obama needs to nominate Judge Richard Posner of the 7th Circuit Court of Appeals as his nominee. If you are familiar with the name, you are undoubtedly looking at me as if I have two heads, but hear me out, this is what winning looks like:
If you are not familiar with the name let me offer a brief thumbnail sketch
First the basics
Richard Allen Posner born January 11, 1939) is an American jurist and economist, who is a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School. He is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most cited legal scholar of the 20th century.[1]. Posner is the author of nearly 40 books on jurisprudence, economics, and several other topics, including Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Sex and Reason, Law, Pragmatism and Democracy, and The Crisis of Capitalist Democracy. Posner has generally been identified as being politically conservative
The highlighted but becomes important in a bit, but worry not, that’s only a paragraph fragment and there is a “but” coming.
But before we get into that just consider the pick in a completely apolitical way. Judge Posner, is an undoubtedly qualified nominee, and in the minds of many, including this lawyer, he is one of the most brilliant legal minds this country has, and an excellent jurist. Simply on that basis, his service on the Supreme Court would be a GOOD thing. We SHOULD want only our very best legal minds deciding our toughest cases, and the truth is, for every high profile political case the Supremes hear they hear a dozen mundane cases that can affect contracts, or commerce, or a dozen other things, and they need to get those RIGHT. By nominating him Obama can demonstrate a high-mindedness, and make a judgement that transcends politics, and makes a liar out of many of his critics
“But” I can already hear you say “this IS a 5-4 court, and they DO consider political questions, so why put another conservative on the bench?” And it’s a good question/ The truth is, in Posner’s long career on the bench, (he was elevated by Reagan after all) he has long been seen as a solid reliable conservative . For example he wrote the opinion in the 7th Circuit Court of Appeals that the Supreme Court upheld in Ledbetter Case that it took an act of Congress to overturn in the first months of Obama’s presidency. So why the hell should Obama try to elevate him?
Well, remember that “but” I hinted at above? here’s where that comes in :
Posner has generally been identified as being politically conservative; however, in recent years he has distanced himself from the positions of the Republican party[2] authoring more liberal rulings involving same-sex marriage and abortion.[3][4]
As happens to many judge, he seems to be moving left as he ages , in his case this seems to be mostly because his personal integrity will no longer allow him to swallow the absurdity of the current Right Wing. Here he is destroying the logic used by defenders of a gay marriage ban:
[The] government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of government encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
Now read his dissent in the Wisconsin Voter ID case I find this paragraph particularly brilliant:
The panel is not troubled by the absence of evidence. It deems the supposed beneficial effect of photo ID requirements on public confidence in the electoral system “‘a legislative fact’-a proposition about the state of the world,” and asserts that “on matters of legislative fact, courts accept the findings of legislatures and judges of the lower courts must accept findings by the Supreme Court.” In so saying, the panel conjures up a fact-free cocoon in which to lodge the federal judiciary. As there is no evidence that voter impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials? If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court-do we increase public confidence in elections-by making the mistake a premise of our decision? Pressed to its logical extreme the panel’s interpretation of and deference to legislative facts would require upholding a photo ID voter law even if it were uncontested that the law eliminated no fraud but did depress turnout significantly.
But you don’t even need to read the tea leaves of his opinions here is a statement on his political evolution from the horses mouth:
Posner expressed admiration for President Ronald Reagan and the economist Milton Friedman, two pillars of conservatism. But over the past 10 years, Posner said, "there's been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking."
"I've become less conservative since the Republican Party started becoming goofy," he said.
In the same interview he went on to talk about the itiol Roberts was recieving t the time for upholding Obamacare but it sounds very much like he’s also describing his own internal monologue:
because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."
SO, to me this is what Posner represents.
1) A name that is INCREDIBLY respected by the legal community. This pick will be hailed and paised by every law professor and legal talking head the cable networks can find, no matter WHAT their ideology. Lawrence Tribe, Alan Dershowitz, Even Fox’s Judge Napolitano would have a hard time saying a cross word about him.
2) A Judge with SOLID conservative Bona fides, and, even better one many big money Republican donors respect because of his VERY influential views on economics and how they impact the judicial system. Blocking Judge Posner would cause some REAL pain for GOP senators in their bank accounts, and major embarrassment since they would be in the position of blocking a Republican and Reagan-appointed nominee but
3) a Judge who is not only “right” on some of the most important touchstone social issues we Liberal hold dear, but someone who is a brilliant and forceful jurist who writes ironclad opinions defending them
So if Obama were to nominate him, it creates a choice of outcomes that are all good for his legacy, the country and the party
1) the Senate blocks Judge Posner and reveals themselves to be the utter obstructionists that they are. In the process they anger many of their more centrist donors, and much of the middle of America who is deeply fed up with obstructionism and gridlock
2) the Senate confirms him and we get a Justice Posner, who will go down with folks like Justice Holmes as one of the most skilled jurists to sit the bench. and While not a reliable left wing vote, is not the automatic right wing vote we has in Scalia. Obama and the Democrats look like the “bigger people” for reaching across the aisle for a nomination,; and finally y, not to be indelicate, but Judge Posner is not a young man. At 79 his “lifetime” appointment would likely not last until the end of the next president’s 2nd term so If Hillary or Bernie wins and has a friendly Senate as well, they will likely have a chance to replace him with a actual liberal who can anchor the left wing of the court for 30-40 years.
Yes, it would be VERY nice if Obama was allowed to do his Constitutionally prescribed duty and nominate a Supreme Court justice of his choosing. And nicer still is the Senate took their oath seriously and gave the traditional deference to the President and confirmed his choice. But we all know that ain;t gonna happen. Nominating Judge Posner, in my opinion,is a way to make the very best of bad situation and turn a “lose-lose” outcome into a Win-win