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Momma said wonk you out

YOU CAN'T FIGHT CITY HALL.

I never understand the fuss over Supreme Court nominations. The president holds all the power. That's even more true if his party controls the Senate. So when conservative groups "concede that they have little chance of derailing Obama's choice, barring a scandal," what does it mean? If they derail Obama's choice, he'll just make another choice. It's not like defeating his first nominee would make him lose a turn, or let Mitch McConnell choose the next candidate. Bush, for instance, got beat on Harriett Miers, and then nominated a more conservative justice in her stead. The hubbub is baffling. The opposition can't win. They can only delay losing.



COMMENTS

but you can derail particularly awful candidates. see miers, harriet.
there's also always the hope of bork-ing someone and forcing a more moderate replacement.

What jamie said. Also, Miers' demise had more to do with opposition from Republicans than anything the Democrats did.

Ezra,

I'm surprised at this post. It's all about perception.

Is there not a loss of credibility and political capital incurred by a president whose first choice fails confirmation.

Three words: Direct mail fundraising.

But Bush didn't get beat on Harriet Miers at least not by Democrats.

Ron E is right. If Harriet Miers got Borked, she got Borked from behind, which sounds naughty.

Ugh is right too.

Anyway, I thought Harriet Miers would have been a perfectly fine person to confirm, given that (1) she was up there in years, (2) she was non-ideological enough to be persuadable after Bush left, and (3) she invited freaking Gloria Steinem to campus.

Being defeated on a nomination is a loss of political capital, and repeated losses on the same seat would be a political-market crash.

The term "mau-mau" (recalling a popular rebellion in Kenya in the late 1950's) used to refer in the US to loud, visible, attacks against something, with the objective of discrediting it. What the GOP now is doing is pre-emptive mau-mauing hoping to force Obama into choosing someone more GOPish than Obama would prefer. The GOPosauris ranks even suggested last week that Obama choose from Bush's rejected appeals court choices. The whiners in the GOP even complain that any non-white-male candidate would upset our holy traditions and 'force' the GOP into total rebellion on anything proposed by Obama.

Guess what, it worked in the past, and it will work again real soon now. We make not get Alito, but we won't get Thurgood Marshall either, and not just because Obama is a pacifier over troubled waters. Sotomayor was dead as a candidate even if she wasn't on O's list simply because the mau-mauing preemptively worked.

The GOP party of "NO" can also function of the party of "NO or we'll rebel. Next, they'll complain that the state's rights (10th Amend) are being destroyed by anyone less than Bork, Ashcroft, Bybee or Gonzales.

This is huge controversy because the GOP intends to make it into a huge controvery and the media is playing the accompaniment.

First, fund raising opportunity.

Second, sometimes the second appointment is an improvement from the POV of the opposition. For Dems, A. Kennedy is at least somewhat better than Bork would have been, and Harry Blackmun was a huge improvement over the segregationist/mediocrity double bill of Haynesworth and Carswell Nixon tried to appoint to that seat first.

Third, the possibility of damaging the President, although the Bork experience certainly didn't seem to hurt Reagan much.

Also Republicans don't let themselves be bound by custom or unenforced constraints. There is no actual rule against filibustering not only Obama's first choice, but all subsequent picks as well. They can simply refuse to confirm any nominee to the left of Roberts or Alioto. They can always count on backing from a blue hog or two.

And what's not to like about delaying? When has the GOP ever paid any clear-cut significant price for delaying? One could argue that they're seeing that now in the national polling as they become permanently associated with the word NO, but it seems to be their primary tactic in many areas, and has been for years, as they delayed and delayed court hearings, ignored subpoenas to test whether they'd be forced to testify, refused to give up lost causes (see MN senate race), etc. Not sure why you'd discount it so glibly. Delaying losing is a great tactic if your supporters insist your losing strategy must prevail (or your opponents' winning strategy must fail).

Also consider that the Republicans may be repeating their strategy of heading into a fight where the President is systematically going to win, raise expectations while lowering Obama's bar for success (in this case, that he will have trouble getting his nominees through) and then get humiliated when it turns out things didn't explode.

It's been working for them so far, so I don't see why they'd be inclined to relent.

The only reason to try to defeat a nominee is if they will rule on their preferences rather than the law and Constitution, and if they have a record of ruling that way. I'm a conservative, and I have a problem with Bork because he said some crazy crap that sounded way beyond Constitutionally fishy. There are liberal and centrist justices and nominees who have also employed really tortured reasoning to justify their rulings(O'Connor being the most blatant example).

So Republicans should go through any nominee's past decisions or legal writings, see if there is anything majorly unconstitutional there, grill them on it, and confirm them if nothing major shows up. It's not as hard as it sounds. Despite Stephen Breyer's moderation, he has a rather long explanation of his judicial philosophy which talks a lot about "increasing participation in the democratic process", a laudable goal, but absolutely zilch about the Constitution. That would have been a red flag had I been a Senator.

I'll guess it's not really baffling, as the reasons for GOP obstructionism are clear enough: First, obstruct just because. Second, obstruct because there's money to be raised from the GOP base. Third, obstruct because it gives us something to do besides having to admit "we're screwed."

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About Ezra Klein

Ezra Klein is an associate editor at The American Prospect. An archive of his articles for The American Prospect can be found here.

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