Supreme Court Justice John Paul Stevens will resign from the Supreme Court either this year or next. The Washington Post quotes Stevens as saying, “I can tell you that I love the job, and deciding whether to leave it is a very difficult decision. But I want to make it in a way that's best for the Court.” The Post then goes on to explain that Stevens may want to “allow time for the nomination and confirmation process to complete before October.” So this could happen soon.
Whatever Stevens' decision about the timing, it will presumably be for the good of the nation. But it sounded from the Post article like he was contemplating doing it sooner rather than later, and I find myself wondering if that might end up being a “supreme blunder.”
For one thing, there's an analysis in Politico just yesterday noting that a resignation (then just a possibility) could “upend President Obama's agenda.” I think that's a fair point.
But ignoring for the moment the issue of what it does to the rest of Obama's agenda, the matter of the Court is a serious one. The Court is leaning heavily to the right these days, and Obama is a centrist, so his natural impulse ought to be to nudge it back to center. Unfortunately, Obama seems to prefer tactics that are themselves “fractally centrist”; that is, not only does he want the outcome to be centrist, but he wants each individual act leading up to the outcome to be individually centrist as well. And that can't work.
To bring a ship that's listing back to an upright state, you can't insist that every individual move be balanced; balance is restored by peforming an act that, taken in isolation, is unbalanced. Now add to that the fact that Stevens is one of the anchors of the Left in the Court, and so must be replaced by someone with a strongly liberal view to even maintain the status quo. That will not be Obama's impulse. He will want to appear relentlessly purple, relentlessly centrist.
But, if I'm reading him right, Obama's gut instincts won't restore the balance he may seek. It will be a step back in almost every cause that he purports to believe in. I fear he has a huge blind spot on such matters. The Democrats need to send Obama a clear message that bipartisanship is not the strategy of choice here, and that someone who is a clear defender of the Left is the only acceptable replacement for Stevens.
Now let's return to why I think it would be perhaps a blunder on Stevens' part to resign now. I basically worry it may not play out the way he expects. I see three basic scenarios here, and Stevens' move seems to presume that a particular path is the winning choice. I'm not so sure. I don't think such a move would necessarily force failure. But I think success requires going forward in a different way than he is suggesting.
Scenario 1. Obama picks a strong left-leaning candidate now.
From the Post's report, this is what I think Stevens might expect to happen. I think Obama won't do it, though. In his foolish quest to be adored by Republicans and Democrats alike, he risks both taking an action that pleases none and that, if you'll pardon rhetoric already abused by the Right, injures the nation. (No, I'm not calling it treason. No, I'm not calling anyone to arms. But yes, I do think it's bad judgment and I do think these things matter.) Obama won't want to appoint a left-leaning candidate, so I think this scenario is off the table.
Should Democrats be vocal and insist on this anyway? I am not so sure. For all I believe a left-leaning candidate is what we need, I'm a bit nervous about rushing a candidate in at this point. There is the matter of Obama's agenda and the interruption of momentum it will inevitably cause. But there is another, more compelling issue. I'll return to that along with my discussion of Scenario 3 below.
Scenario 2. Obama picks a centrist candidate.
This would be devastating, but seems likely. Obama loves to pre-bargain, making unilateral offerings in hopes that people will treat him better later. We have seen this doesn't work, but there's no evidence Obama has comprehended that. He continues to make concessions without getting anything in return.
And anyway, the Court should not be a bargaining chip. These are our rights and must not be fodder for political compromise. The Pro-Choice movement already lost ground in the health care debate, and disrupting the balance of the Court could be like that on steroids. It would mean that the right-leaning Justices on the Court would have no one counter-balancing them, perhaps for decades to come. That would be a serious problem.
I've written previously about the notion that a fair and balanced court will not be achieved by asking people to rise above their desire to be partisan; I think it's a mistake in the process that we don't insist that judges speak about their prejudices and simply seek to fill the court with a 3/3/3 split (3 conservatives, 3 moderates, 3 liberals). That would be honest. Instead, we pretend that if we blindfold ourselves to bias, the blindfold will crank out justice. I don't believe it.
If Obama picks a centrist, that won't make there be balance in the Court. It will instead enshrine a bias that will take decades to remove. This scenario is Very Bad. But it is not unlikely if action is not taken to prevent it.
Scenario 3. The process drags out until after the election.
This might seem bad at first, but I'll argue this is the Best Possible Thing.
Yes, it could be a reason for Republicans to “rally the base” in November. When that happens, more Republicans vote than might otherwise. that could tip the scales. But I don't think it will. The Republicans are already charged up. I think they'll already vote. I'm guessing there isn't much upside to a newly manufactured crisis because probably they're already close to saturated.
It's already being assumed that after the election we might have fewer Democratic seats. But what if that's not so? What if it goes the other way? I think apathy is the thing most likely to cause a drift to the Republicans, a sense that votes don't matter. But this vote could matter.
Like the Iraq war, which seemed to be failing for lack of energy, it could be that a surge strategy for the Democrats would work best. New democratic seats could mean if some Blue Dogs went the other way on certain issues, the Democrats overall could still control things. But how would you get enough Democrats to the voting booth to make this happen? The Republicans know: Have something important still on the line—something that matters to show up for.
It's my belief that if Scenario 1 is attempted, the Republicans will whine, probably uselessly, that they didn't get their way, but that won't affect much. What will matter is that the Democrats will feel like the hard work is done and they have a reason to rest on their laurels, to not go to the polls.
What if, instead, the Democrats thought the hard work was not done. What if they could affect things? What if by not showing up, or by throwing away their vote on a protest vote, they knew they would be making things worse on themselves for decades to come? Let the Democrats take a page from the Republican playbook and rally their troops to the voting booth over the future of rights. What if Obama were to say he's willing to appoint a left-leaning judge but only if the voting base comes out and says by a clear margin that that's what they want? He could even name the judge. I'll try to appoint this one if the election goes heavily to the democrats, and this one if it doesn't. (Of course, the Senate would still have to confirm.)
I think that's the best chance of rallying the base for the fall. All this talk about health care is nice, but that's a strategy of saying “It's going fine.” And the Republicans know that this doesn't rally the base. The Democrats need a strategy of “It still matters.” Obama doesn't want to send that message, but if he wants to stay in power, he should. And it's not disingenuous. It does still matter.
Obama may try his standard strategy of making concessions too early, as in Scenario 2. If he does, I think Democrats in the Senate should stop him, not allowing things to be rushed.
Besides, if the process is delayed, it gives Obama time to focus on other near-term things he ought to deal with immediately—like jobs and climate change. That would address Politico's point as well.
If Obama will not drag out the process, I think Democrats in the Senate should. Their proper role is to support the nation, not to support the President. The Senate is not a rubber stamp for the administration. And the Republicans, the Party of No, will presumably be happy to help them on this. There would be a delicious irony about that—them forced to say “yes” in order to get to the place they need to go politically. Or, if they're determined to say “no,” we can watch them play straight into a Democratic strategy. That would be worth seeing all by itself.
All in all, though, I'd rather Justice Stevens just deferred talk of retirement until the next Congress was in place, allowing Obama to focus on jobs—and climate change. The issue of the Court would, of course, be discussed by candidates for election, but meanwhile Obama could focus his energies on other, more important matters. It's not a risk-free strategy, but I think I like the odds the best given how I feel about the alternatives.
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