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Should the White House want a controversial Supreme Court nominee?


Nate Silver doesn't think a Supreme Court nomination fight needs to be contentious. "As important as the Supreme Court is," he writes, "congressional hearings are still congressional hearings, and are for the most part an inside-the-beltway affair that won't penetrate into the zeitgeist in a year where most voters have things like the economy on their minds."

I'm going to question the conventional wisdom in the other direction. President Obama could nominate the guy on the Quaker Oats box and Glenn Beck would find a way to connect him to Trotsky on his blackboard ("you know who else liked oatmeal!?"). Moreover, the GOP will enthusiastically help him on that one. Midterm elections are about base mobilization, and nothing is better for base mobilization than an asymmetric Supreme Court fight in which, say, evangelicals are furious about the nominee and liberals are skeptical (which you're already seeing in the early reaction against Elena Kagan).

So there's a case that the Obama administration should pick someone who Democrats will really like and who the public is likely to eventually support. I think someone well known like Clinton actually makes sense from that perspective. Another unlikely idea: Harvard Law professor and financial regulation expert Elizabeth Warren, whose appointment would be an admission that many of the Court's most consequential decisions are on economic and regulatory matters, rather than just on the cultural issues that tend to dominate nomination hearings. Warren is primarily controversial because she's pretty tough on Wall Street, which may not be a fight the GOP wants to pick right now.

That said, the point of this post isn't to toss out clever names, just to make the point that the conventional wisdom that Obama should avoid a fight here might be wrong. He's likely to get one whether he likes it or not, and the question is more whether it'll be a fight that his supporters want to be part of.

Photo credit: Marvin Joseph/TWP.

By Ezra Klein  |  April 9, 2010; 5:44 PM ET
Categories:  Legal  
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Next: Reconciliation


This is true. The downside to saying "no" to everything and calling anyone left of Glenn Beck a socialist is that there's no longer any penalty to actually picking someone truly controversial on the merits. But Obama is too conciliatory for that kind of thinking. So we'll get a candidate who's a little left of center but probably to the right of Stevens or Ginsberg.

Posted by: vvf2 | April 9, 2010 6:06 PM | Report abuse

Obama is not famous for acting as if he knew he'd get a fight whether he wanted one or not. Don't I wish we saw a little more of that ...

Posted by: janinsanfran | April 9, 2010 6:12 PM | Report abuse

It occurred to me immediately also that Obama might as well pick an actual liberal since any nomination will be painted as such anyway. Might as well make the right rabid and give the left something to cheer for.

That said, as a liberal, I wouldn't take Glenn Greenwald's advice on potential Supreme Court nominees.

Posted by: JJenkins2 | April 9, 2010 6:22 PM | Report abuse

exactly, they're going to filibuster who ever he nominates even if it was Waterboard Woo....

Posted by: Geopolitics101 | April 9, 2010 6:26 PM | Report abuse

Obama's days of fighting and getting in people's faces are over. Republicans have given Obama as much rope as he needed to hang himself, which he did with the Health Care Reform by jamming it down the throats of all America. He will not be allowed to get away with this type of tyranny again, ever.

Posted by: prossers7 | April 9, 2010 6:27 PM | Report abuse

prossers7 here with the perfect example. Just like the healthcare bill was called "tyranny" that was "rammed down our throats," despite its moderation and deliberate process, there's no such thing as a non-controversial SC nominee.

Posted by: etdean1 | April 9, 2010 6:33 PM | Report abuse

Nominate Dawn Johnsen. She's available now.

Posted by: bmull | April 9, 2010 6:33 PM | Report abuse

It's such obvious advice, which makes it so incredibly frustrating to watch the White House repeatedly not take it. There is absolutely no upside to trying to appease Republicans - it never works, and no one is impressed by how bipartisan and accommodating the White House is. Not even the Wise Old Men at the Washington Post.

Posted by: randrewm | April 9, 2010 6:43 PM | Report abuse

I luv Liz Warren, but she's 61. We need a moderate/progressive in their 40's, not 60's.

When is all said and done, Obama will pick someone who both the left and right will hate. But it won't matter. The GOP Senators are NOT going to allow a vote on ANYONE before the Nov. elections, since they dream they will win a majority in the Senate, somehow.

also. too. Having the pot of nomination still boiling for the elections also makes it possible for the GOP to rant that whoever it may be be, is way to the left of Vlad. Lenin and will bring a bolshevik era singlehandedly, with Hitler advising the new justice on legal matters. And Pol Pot would be his/her clerk.

I'm becoming convinced that Obama is the biggest denier of reality that we may ever have had. He will go to his grave in the distant future believing that if he's nice enough to his opposition, they will magically be born again as reasoning people.

I nominate the Quaker Oats guy, because that hat is even better than the pope's.

Posted by: JimPortlandOR | April 9, 2010 6:53 PM | Report abuse

Maybe Obama could name one of his buddies... Bill Ayers or Reverend Wright. They could help Barack on his mission to destroy the Constitution, fulfill the Marxist "Dreams of his Father", and return the nations wealth to its rightful owners... Slave Reparations galore!

Hope and Change... that was a charade for a soft Tyranny with the effect of a Marxist junta

How many of you want your vote back about now?

Posted by: Obama_TRAITOR_in_Chief | April 9, 2010 7:18 PM | Report abuse

Wow. Not trying to feed the trolls, but I certainly don't want my vote back. My guy Obama is doing pretty well by my reckoning.

Posted by: StokeyWan | April 9, 2010 7:22 PM | Report abuse

Lawrence Lessig?

Posted by: MosBen | April 9, 2010 8:02 PM | Report abuse

Janet Napolitano, Janet Reno, Barbara Mikulski and Anita Dunn would all be excellent choices. Or Valerie Jarrett. Or Desiree Rogers, Susan Sarandon, or Ellen Degeneres?

Posted by: truck1 | April 9, 2010 8:49 PM | Report abuse

Obama will pick a progressive that fits his socialist agenda! Should we expect anything different?



Posted by: my4653 | April 9, 2010 9:11 PM | Report abuse

"...the public is likely to eventually support."
I like your advice Ezra! Go for it BHO! Forget the polls. Double down! You are all delightfully delusional and will be swept away by the political whirlwind in early November.

Posted by: sonoflibertypaulrevere | April 9, 2010 11:29 PM | Report abuse

how about Oprah lol.

just hoping for a long drawn out battle.

bring it Barry.

Posted by: jlbliemeister | April 9, 2010 11:40 PM | Report abuse

"You are all delightfully delusional and will be swept away by the political whirlwind in early November."

the republican party has no center, no credible leadership..their house is in wretched disorder.
things are going to get worse for them.
they are going to experience power struggles and unforseen mishaps in the near future.
you dont need to be reading tea leaves to see the sorry shape of the republican party.

Posted by: jkaren | April 10, 2010 1:08 AM | Report abuse

I still can't believe this skinny little n*gger is the president!

Posted by: jhayne5 | April 10, 2010 1:30 AM | Report abuse

hillary clinton should absolutely not be a supreme court justice.
very poor choice to have such a political, controversial person considered for an appointment to the supreme court.
especially when her life and career have been connected to all kinds of special interests, in tandem with her husband.
and i think her appointment would be fraught with controversy and more scandals.

the only way she became secretary of state was because a blind eye was turned to the conflicts of interest that existed.
the same reasons of ethics and character that prevented her from being president, are the same reasons why she would be a poor choice for the supreme court.

there are many distinguished people who deserve a chance to serve on the supreme court.

and i disagree. i think many democrats do not care for her.
and i also think that she would be a highly controversial nomination, and that getting her appointed would not be a simple process.

Posted by: jkaren | April 10, 2010 1:30 AM | Report abuse

"I still can't believe this skinny little n*gger is the president!"

and here is the loathesome face and heart of the republican party. in 2010, in all its confederate glory.

failed, careening and craven.

Posted by: jkaren | April 10, 2010 2:18 AM | Report abuse

Hussein Barack Osama couldn't pick his nose let alone anything else. His last pick was a joke as are the people who voted for him. But the real Joke is upon all of us out here who recognized him for what he is, and are forced to see our lives go down the drain . Put there by someone who isn't and American and never has been

Posted by: puck-101 | April 10, 2010 5:45 AM | Report abuse

The president wanted a fight just not this one. He was preparing to brawl over financial reform already making it clear he would veto the bill that the GOP was trying to craft that would have been meaningless. Clinton was adamant about not wanting to serve on the court. I think she meant it and the former Goldwater girl is all but right of center.

The nominee needs to be the best qualified jurist and one with the qualities needed to encourage consensus and to brink Kennedy along or the court will veer further to the right.

Posted by: xclntcat | April 10, 2010 6:05 AM | Report abuse

The American people are starting to realize what a pomous fool Beck is especially after his racist remark he made regarding Obama's next nominee! He has attacked EVERY group from the disabled (which would also include our veterans)to the color of ones skin! How could anyone listen to or believe any of the diarrhea that spews from Beck's mouth? He is nothing but a circus attraction paid off by Corporate America especially FOX who is owned by the GOP and who OWNS BECK!

Posted by: merf-1 | April 10, 2010 7:43 AM | Report abuse

Wow, you're sure getting your fair share of trolls these days, Ezra. And I do believe they represent the Republican party very well.
I think we need a new corollary to Godwin's Law, except with the N-word instead of Hitler. Disgusting.

Posted by: GovtSkeptic | April 10, 2010 9:12 AM | Report abuse

Obama is destroying this country from within and he is not qualified to be president. The time has come for the President to perform his duty to THIS country and show us his birth certificate. No certificate? Then all of these constitutional crimes go away; the czars, healthcare, all of it. There are too many questions, too many doubts and he has been dodging far too long. Where there is smoke there is fire. The more people that begin asking for the proof, the less he and the major broadcast networks will be able to ignore us as they have done with so many other issues. If there is the slightest doubt in your mind then you too need to be asking. We have let the seemingly small things go and look where that has taken us. I want to talk about it because they are in cover-up mode. It would be such an easy thing for any one of us to show our birth certificate. Why is it so difficult for him? Why does he treat this country as if he is ashamed of it? Why does he treat our allies as if they are enemies? Why does he encourage Congress to ignore the will of the people? Why did his wife refer to his home country as Kenya? Why will he not release his own school records? Why does he disgracefully bow to the leaders of other countries? Why does he admire dictators from other countries? This is Obama’s Watergate. There is no need to impeach someone who is not qualified to be president. Everything he has signed, ordered, or acted upon is illegal. So I ask you Mr. President: WHERE IS YOUR BIRTH CERTIFICATE?

Posted by: D0ntTread0nMe | April 10, 2010 9:27 AM | Report abuse

So moving beyond all the crazy people asking for a birth certificate....two questions to Ezra. A- don't you think that Obama has shown pretty clearly that the only thing he's interested in is being conciliatory? I actually wouldn't be super surprised if he nominated a moderate republican. B-I like Hillary Clinton a lot, but I dont' think it's feasible to nominate her. firstly, because she's made open statements on abortion (a couple of weeks ago in Canada when she made that common sense remark about women's health?), which the conservs would jump on. Second, though, can you imagine the amouont of hay republicans would make out of Obama trying to pick a new secty of state? And she's a great secretary of state-it's hard for me to imagine who could be better for that.

In my imaginary world, Elizabeth Warren would be fairly ideal (if she even wanted it). She's not a culture wars person (although I suspect she'd be at least somewhat liberal if asked about them), she's whip smart, and anyone who can make it that far in academia knows a thing or two about negotiating in small groups of people with big egos (I speak from experience). And she is tough on wall street. Alas, however, I fear that Kagan is probably the most liberal we will get from Obama. He really isn't a liberal himself, so not inclined to pick that way, and he is the worst negotiator I've ever seen. (the fact that he's floating kagan probably means that she's like the public option-she's his throw away. I fear.)

Posted by: chanakf | April 10, 2010 10:23 AM | Report abuse

Where the Republicans have been very sucessful over the past 30 years in remaking the federal courts. Democrats needs to wake up, fight harder and push their nominees through.

Posted by: Brainny | April 10, 2010 11:36 AM | Report abuse

1. the supreme court is absolutely no place for politicians, or people enmeshed with special interests, on wall street or in other countries, or anywhere.
the personal ethics and principles of a nominee should be
the first consideration.

2 keep flamboyant, divisively partisan public figures who bring drama, lapses of ethical behavior and judgement, off of the supreme court.

3. there should be, ideally, an element of purity, selflessness, and almost, anonymity in a supreme court justice.

there are many such people working in the judicial system that meet those standards

Posted by: jkaren | April 10, 2010 11:39 AM | Report abuse

Any Supreme Court nominee should be someone who impartially interprets and upholds the Constitution, and not someone who uses activism from the bench to further socialist or collectivist agendas.

Posted by: RealTexan1 | April 10, 2010 12:47 PM | Report abuse

Hillary for the Supreme Court!!!!

Posted by: ATLGuy | April 10, 2010 12:47 PM | Report abuse

A SC Justice should be able to apply the facts at hand to the laws of the land impartially, but this has nothing to do with having an anonymous personality or having a background in politics. We've had plenty of non-judges who served well on the Court. It's a very modern invention that Justices need to have long judging careers prior to nomination.

The Supreme Court decides big picture analytical issues of law. What's needed in a Supreme Court Justice is a sharp mind, no matter if they've used it as a judge, a litigator, an academic, or a politician. What a nominee should demonstrate both in person and by their record is an ability to put their personal thoughts and biases aside in the interest of fairness and impartiality, not that they have no personal thoughts or biases.

Posted by: MosBen | April 10, 2010 4:20 PM | Report abuse

And one note on judicial activism: I know that everyone really likes to bandy that around when a Justice does something they don't like, but can we *please* retire that phrase from the lexicon? It's completely meaningless. Judges "make law" every time they apply a general stature or regulation to the specific facts of a case. They draw the line between the text and the factual circumstances which they believe the text was meant to apply. Sometimes this is a very clear line to draw, but many times (and most times when we're dealing with Constitutional issues) it is not a clear line at all.

There's nothing in the First Amendment that restricts free speech in shouting "Fire!" in a theater, nor allows for any laws against libel. These are interpretations wholly created by judicial interpretation. When you add in that we have a system which discourages our legislators from passing updated laws as times change and you're necessarily going to have judges doing their best to apply laws to situations that couldn't have been considered when the law was written. At that point they make the call and "make law". If we don't like their reasoning or their outcome, the proper response is to urge the legislature to change the law.

Posted by: MosBen | April 10, 2010 4:28 PM | Report abuse

MosBen gives the standard liberal view on what a court should do. That is fine. There is a fair argument to that case. That a judge should provide justice to the litigants in a case. That is the judging of Solomon. I just think it is wrong for our system of governance.

My view is that judges should provide results that the people accept without threat of violence within what the people believe to be a just system. Our system is based on democracy where "we the people" determine how our society functions within the constraints of our founding documents.

Difficult questions of politics are settled through politics. Judges must confine themselves within the parameters of the law as written.

I would only remind you all of the Iranian Supreme Counsel. They are essentially a court that rules the nation. Iranian politicians have little power in providing for the will of the people. The Iranian Supreme Counsel is essentially judges acting like politicians. That is not what we want in our nation's Supreme Court.

Judges have developed a training of strictly researching the law and following precedent. That is what makes them the best judges and what will make them the best justices.

I hope Obama nominated the finest left-of-center legal mind in the country on these issues. I suspect that is Diane Wood or Marrick Garland. Sonya Sotomayer, Stephen Breyer, and Ruth Bader Ginsburg are within that tradition of excellence on the left. John G. Roberts and Samuel Alito are in that same tradition on the right. Let's keep having our best as Supreme Court justices.

Posted by: lancediverson | April 10, 2010 5:07 PM | Report abuse

"" I just think it is wrong for our system of governance.""

Your concern is noted. Thankfully, our civilization went in another direction. It works that way precisely _because_ difficult questions of politics are rarely resolved through politics.

Obama has very little stomach for picking a fight. He makes sure to _finish_ a fight, but he has no interest in starting one. I predict he picks someone in his or her late 50s/early 60s that is considered uncontroversial by many, and he crosses his fingers in the hope that the justice will become more liberal over his or her relatively short tenure.

Posted by: tyromania | April 10, 2010 5:29 PM | Report abuse

My guess is that he will nominate VanJones. Yes, why not a communist on the Supreme Court? Obama put him in the White House, why not the Supreme Court.

I never thought I'd live to see freedom fall in the U.S. I only have a few years left, but I never saw this coming.

Self-admitted communists in the White House, socialism, the fall of freedom, no respect for integrity whatsoever...

Are we out of Iraq?

Are we out of Afganistan?

Are we out of Gitmo?

How is that tax situation looking now? You will obviously being paying much more, but don't expect Timmy G. to do the same. He is just in charge of collecting taxes, he doesn't have to pay them.

For all those liberals who seemed to like choice in abortion, how does it look when you lose choice in health care? Pay or go directly to jail, whether you want or need the coveage or not. Well, except congress, they don't have to.

Do you feel there is more transparency? Ha

Did he get rid of the lobbyists as promised? No, now they are in the White House.

Posted by: dchapman | April 10, 2010 7:15 PM | Report abuse

How did all these right-wing fanatical lunatics pick this particular thread to show up in?

Posted by: tyromania | April 10, 2010 8:28 PM | Report abuse

Obama will nominate Kagan. He's the posterboy for DC Stockholm Syndrome. He's deluded into thinking that--if he just keeps kicking stinkin' hippy progressives in the teeth-- the Kool Kids will HAVE to accept him and quit calling him nasty names.

Posted by: SaltyDawg79 | April 11, 2010 2:49 AM | Report abuse

Lance Diversion, with respect, that was not what I intended to argue. I don't think judges should find what they believe to be a just result and work their way back from that, justifying the result in any way they can. What I am saying is that all statues, even the most clearly written, must be applied from generalized statutory language to specific circumstances. If the statute is about is about workplace discrimination, the judge must decide that these litigants and this specific fact pattern are the types of people and situations envisioned by the law. Sometimes statutes are very clearly worded or the situations very simple and applying the law is a simple affair. Even then, each decision is the creation of precedent, a new and somewhat unique take on the application of the law which controls how future cases are decided.

Every decision made by a Judge "makes new law", even if it's a completely non-controversial application of previous decisions. People of every political background are bound to disagree with how a Judge calls a case from time to time. All the Judge can work from are the facts of the case and the law at the time the case is heard. If his or her interpretation of the law produces an outcome we don't, as a society, like, we can use the political process to change the laws available to the Judge.

Judges should act in a restrained manner, but we should also all understand that the application of generalized rules to real-world situations is from time to time produce results we don't like.

Posted by: MosBen | April 11, 2010 10:25 AM | Report abuse

I agree that, in the court of public opinion, there is likely no downside to picking a solid liberal judge - either way the crap will be flung and at least you increase the chances of such a person getting through.

But, provided this fact is still true -- that the Republican caucus can rally 40 votes in the Senate - then the above is unlikely. It has more to do with who the right most Democrats and a left most Republican (Snowe? Collins?) will accept. Obama should push for a candidate more in line with the Democratic party's understanding of jurisprudence (as the Republicans would if it were a Republican president picking) that can garner that many votes. That may or not be a substantial liberal. But, it should be done now because if the Republicans pick up seats that point moves rightward no matter what.

Posted by: y2josh_us | April 11, 2010 12:25 PM | Report abuse

The thing is Obama still has the rest of his big government agenda, cap and tax for example, he wants implemented before his pary loses big in November and nothing will suck up all the oxygen out of Congress like a big Supreme Court fight. It's in his best interest to nominate someone reasonably moderate to get the confirmation process over ASAP. Whoever he nominates will be liberal, I'm sure the Republicans know that but that, but what they won't accept is a radical left winger. You also forget that the Republicans can filibuster whoever Obama puts out there now and the likelyhood that the filibuster would be successful goes up the more radical the nominee. Obama himself said in his book that it was a minority party Senator's duty to use the filibuster to prevent a president from appointing a radical to a lifetime poisition on the Supreme Court. I'm sure he meant a radical right winger but it applies to a radical left winger also.

Posted by: RobT1 | April 12, 2010 9:06 AM | Report abuse

In the best right-wing tradition, I'm going to deny the premise of your question. That's like asking what the margin will be in favor of ratifying START III. I.e., it's dumb.

The President could nominate King Solomon and it'd be "controversial."

Posted by: ajw_93 | April 12, 2010 11:45 AM | Report abuse

re: Hillary

If the GOP is going to fight to the death anyway, then please, please, please, please, pretty please, let Obama shove Hillary down their throats.

Posted by: antontuffnell | April 12, 2010 2:15 PM | Report abuse

Andrew Napolitano

Posted by: kingstu01 | April 12, 2010 3:07 PM | Report abuse

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