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Why There Is No Supreme Court "Fight."

The crawl on MSNBC -- yes, I'm sitting in front of the teevee when I should be at the beach, I fail at vacation -- just informed me of some "BREAKING" news. Mitt Romney - who has literally no role in the nomination of the next Supreme Court Justice -- finds the nomination of Sonia Sotomayor "troubling."

This is one of those moments when the media's preference for conflict gets in the way of its efforts to inform. A Supreme Court nomination is an important story. But it is not necessarily a dramatic one. The last nominee to actually be defeated -- Harriett Miers was withdrawn, remember, and withdrawn due to conservative unrest -- was Robert Bork. And he was a conservative choice facing a Senate with 55 Democrats. Sotomayor is a Democratic president's nominee who will come before a Democratic Senate. She won't be "Borked" because, where Bork began 5 votes down, she begins 10 votes up. If Bork had enjoyed 15 more easy votes, he'd be Justice Bork today.

As such, there are certain safe predictions we can make: Barring imperfect vetting on the part of the majority, the final nominee will be pro-choice. Will be sympathetic to labor. Will be sympathetic to the federal role in regulation. Will be, in sum, the sort of Justice you'd expect from a left-of-center president and a left-of-center Senate.

The apparent importance of Romney's discomfort is that it implies Republican opposition to Sotomayor's nomination. It implies a fight. But Republicans actually have very little influence over the final outcome. If Sotomayor falls, another Democratic nominee takes her place, with similarly left-of-center positions, to be voted on by a Democratic Senate. For that reason, it makes a lot of sense to scrutinize Sotomayor's record. But it doesn't make a lot of sense to handicap her chances. As opposed to an issue like cap and trade or health reform, where the defeat of a bill might mean the death of the effort, this is not, in the long-run, an issue that Obama can lose.

By Ezra Klein  |  May 26, 2009; 4:00 PM ET
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"left-of-center", LOL. Overton much?

So far this administration and Congress has been centrist. It is the Republicans hitting off-center and who now find themselves in the fringe.

Posted by: Panamax | May 26, 2009 4:24 PM | Report abuse

For the Republicans, at this point it can't be about winning, just bruising Obama as much as they can.

Posted by: jeirvine | May 26, 2009 4:43 PM | Report abuse

"im sitting in front of the teevee when i should be at the beach."

go listen to the waves.
build a sandcastle.
it will put everything into perspective.

Posted by: jkaren | May 26, 2009 4:51 PM | Report abuse

The right has no interest in a conservative court. Trotting out the "activist judges" meme and what that means for abortion (partial birth on demand in high schools!),criminals (give them counseling!!) and terrorists (release them into your community!) is a huge money-maker for the GOP. That's why they will launch a fight against Sotomayor. It raises maximum dollars from the base.
If you're a conservative activist, better hold on to your wallet. Direct mail comin' at ya.

Posted by: stevedwight | May 26, 2009 9:18 PM | Report abuse

The biggest issues so far look like her unsupported and extremely unpopular judgement in Ricci v. DeStephano, statements that Latinas make better judges than white males, and her claim that the federal appeals courts "are where policy is made".

Posted by: staticvars | May 26, 2009 10:19 PM | Report abuse

"As opposed to an issue like cap and trade or health reform, where the defeat of a bill might mean the death of the effort, this is not, in the long-run, an issue that Obama can lose."


You have a logical point but you're also missing the political one. It must be deliberate since you can't possibly fail to see the politics. If there is net benefit to anyone in opposing anything Obama does then that is, in part, a small political loss for Obama. To put it another way, Obama may (by some narrow definition) win but the process by which he does so matters, as does the political margin of victory.

To define victory as narrowly as you have glosses over far too much. It is not a sufficiently rich model of political actors, and you (must) know it.

Posted by: TheIncidentalEconomist | May 27, 2009 8:45 AM | Report abuse

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