Kent Pitman

Kent Pitman
New England, USA
Philosopher, Technologist, Writer
I've been using the net in various roles—technical, social, and political—for the last 30 years. I'm disappointed that most forums don't pay for good writing and I'm ever in search of forums that do. (I've not seen any Tippem money, that's for sure.) And I worry some that our posting here for free could one day put paid writers in Closed Salon out of work. See my personal home page for more about me.


APRIL 4, 2010 5:29PM

The Makings of a Supreme Blunder?

Rate: 23 Flag

Supreme Court Justice John Paul Stevens will resign from the Supreme Court either this year or next. [Lady Justice] 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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This is a complex situation, and I think your analysis is compelling, Kent. The possible value in Scenario 3 hadn't occurred to me. If I were advising Obama (heh) I'd observe that Republicans will object no matter who gets the nomination, as you say. They're not acting in good faith.
Kent, thank you for this thoughtful analysis of Justice Stevens' announcement and the ways this might play out. It does seem like this could distract from the major objectives already at hand if he retires this year versus after the mid-term elections. Based on what I have seen so far I would guess that your scenario of picking a centrist replacement for Stevens is what we can expect to happen.
Interesting analysis, but my gut tells me this is not a TOP 5 issue within the voting club. Yes, the Supreme Court is a big deal with highly educated, politically savvy souls, but issues like jobs, taxes, size of government, security, and honesty are a lot bigger deal with the average American. .. and also taking responsibility for your own behavior.
Rob, I agree they'll make a fuss no matter what, but the Republicans are already saying to delay the nomination until what they imagine will be more favorable times. It would be funny if the Democrats just say “Good idea. Let's.” I wonder if the Republicans will spin agreement as a victory or would feel a need to reverse course.

designanator, the point of the Senate is to allow them to say “No, give us something else.” I would hope the Senate can stand up to Obama if he fields someone too centrist.

Max, I agree it's something that doesn't go without saying, but the Democrats need to learn to spell out the stakes. If they enumerated the set of opinions that could be reversed if the Court slips, that might scare people. Weirdly, I'd expect civil rights victories to slip, for example, so you'd expect Obama to care a lot about that. Somehow, though, I think he's afraid of the race issue and won't want to push that. That's a mistake.
I don't see the threat of Obama appointing a centrist candidate as particularly likely, given that his only appointment so far -- to replace Souter, who was much more centrist than Stevens -- was a candidate who was further to the left. Now, if Scalia resigned, I'd be more concerned about his tendency to go to the center, but here -- I think he'll try to replace Stevens with someone in Stevens' mold.

I guess Obama could surprise me on this, though, with one of the scenarios that you paint. It's certainly an interesting thought exercise.
This is outstanding analysis, Kent. If Stevens is in great health, then waiting until next term is not a problem. Then again, if there is a backlash in the 2010 elections, and we wind up with more Rethuglicans in Congress, we may have a tougher time getting even a centrist in office, it could be even worse.
Saturn, his recent action on offshore drilling again suggests that he's got this idea of pre-bargaining ingrained in him, and it makes me worry.

FLW, I agree it's not without risk. But I couldn't find any option that seemed like it was.
Kent, it's an interesting analysis, and I like your option #3.

However, it runs afoul of the usual "left vs right" fallacy. The world is not one-dimensional.

What I'd like to see is for him to appoint a true constitutional scholar, with a clear understanding of what the constitution was written to be, and what it has evolved to be, and the value of a solid definition. Someone who clearly values both the rights declared in the amendments, and the role of government as constructed from e.g. the Commerce clause.

So that's the bone I think he should throw the conservatives -- and then tell them, NO, we are not going to stack the court in favor of your social agenda. And peg THAT dimension's meter toward the left.

Basically challenge them -- do you believe in the principles you say you do? Or are you trying to ram your social agenda down everyone's throat, through governmental power?

I think you'd even get thinking liberals behind the first idea. Note that I define it rather differently than the usual "strict constructionalist" conservative chant. I think conservatives are rather blind to the unintended consequences such a revolutionary approach would have at this point. If we'd had 200+ years of time to amend the document while maintaining a strong interpretation of the 10th vs the Commerce et al, we could have a document that lists more tightly the granted federal powers. We don't have that document, we have the one which has accreted instead layers of interpretation.

One could bemoan that the generations of editors of this standard have done a lousy job, but throwing it out would set us back 200 years, and all manner of injustices have been righted, and rights secured, through those interpretations.

However, a Justice who is at least sensitive to the issues the conservatives like to raise (only when it suits them, I fear), would at least validate that they are being listened to and not ignored.
I agree with Rob. If Obama appointed Orrin Hatch the Republicans would not support it. Stevens is a mainstream liberal and Obama should go the same direction. Obama won't be able to make a positive impact on the court until someone like Scalia retires... which isn't likely.
Thanks Kent for your feedback. I think you said it all with this thought, “Somehow, though, I think he's afraid of the race issue and won't want to push that. That's a mistake."

Race has a lot to do with it. Also, Obama’s handlers are devoid of testes. I agree with your assessment of his probable direction. happy spring.

This is quite an analysis. I'm not sure, though, that you are not perhaps over-thinking the upcoming elections and what effect Stevens' announcement may or may not have.

I think Obama has already done so much to discourage progressives, that it becomes a bit of a toss-up as to whether appointing someone ahead of the election would help or hurt. I think all of your scenarios seem possible.

But I considered that perhaps there is another angle. If Obama actually appointed someone progressive ahead of the elections, it might just motivate progressives who have lost the "hope" Obama rode into the presidency.

I live in a completely redneck, backward Repub state, and I know that my vote will have no meaning regardless, since there is no way this state will send a progressive to congress, and I've seen in my daily encounters with the handful of progressives I know that they have lost all hope of Obama doing anything truly progressive or helpful.

His lack of progressive leadership has completely destroyed their feeling that "we won". It doesn't feel like we did, but if Obama decided to actually make a truly progressive move, it might re-energize some progressives who have given up.

I liked this extremely well though out analysis of possible scenarios and it sounds right to me.
Good analysis, Kent. Obama's motives and strategies continue to confound me, but I think he is a long-term thinker and pragmatist. But, I don't see a Supreme Court nomination having that great an impact on the general voting public.

While I would love to see a strong progressive / liberal judge to balance the Court and replace Stevens, I'm not even sure how we would recognize such a soul (I'm not fully up on the judicial system but it seems like everything is trending right these days). I also agree with Rob that the Senate Republicans and the media mouthpieces will object no matter whom he nominates.

Unfortunately, I tend to think he will go with a mainstream candidate, not necessarily to appease the Republicans, but because his nature and agenda is not nearly as progressive as we'd like to think.
Bob, it's not like I don't like the fantasy world you speak of, in which thoughtful people think great thoughts. It's that the only operator available in this problem-solving space is “say who to appoint now.” There is no consistency-checking, no way to enforce a contract. When a judge comes up for appointment under a Republican administration, the Republicans have made it 100% clear they plan to appoint someone with their biases. That's why I want a 3/3/3 court. Moreover, as I've spoken about in my article Toward a Fair and Balanced Supreme Court, I think the best parts of the Constitutional framework we have are around the idea of allegiance not to people but to process. That is, we don't ask people not to have passions, but rather we put procedural checks on their passions and we distribute control. But this breaks down in the Court, where effectively Bork and his ilk have suggested that a proper Justice is one who reasons as, in effect, a sociopath—someone utterly detached from consequence. This (a) isn't reasonable to ask of someone, (b) isn't easy to achieve and (c) isn't what we ask of any other branch of government. We should have a design of the Court which allows us to bring passions into the discussion in a controlled way. What doesn't work is to pretend there are no passions when really we know they cannot be hidden.
Roger, he surely should appoint someone to the left, even though that only implements the status quo. I simply no longer trust automatically that he will.

Max, glad to hear we're in agreement—not that agreement is required of anyone as a prerequisite of commenting here. :)

Rick, I get your point. But I suspect that the number of people actually motivated by positive effect here would be small.

Alicia, glad you enjoyed the analysis. Thanks for the support.
LPS, so to some extent you're buying Scenario 2, but just saying the motivation might be different—that it might not be offering bargaining too early, but rather that he just doesn't prefer the far left position anyway. Indeed, that may be. Over on Facebook, a friend challenged my remark that Obama was a centrist. I replied that if Democrats think he's too far right and Republicans think he's too far left, that's pretty much centrist. Now whether he's that way because of how he perceives pragmatics or because it's his preferred position, it's hard to say. But some have certainly suggested his whole “purple” strategy wasn't just compromise but a literal statement of his position, and that people have simply read more into his Democrat-ness than is really there.

For myself, I'm an Independent, not a Democrat, and I don't need him to take each and every Democrat position. But I do need him to right the demonstrable wrongs done by prior administrations. Even viewed from the Independent position, the pendulum is way out there on the Right and needs to be swung leftward to get to where I stand. He will not do that by the strategies he's been engaging in. He certainly didn't deliver the Health Care he promised, but more importantly, he didn't even try to. He disclaimed having suggested the public option, and that is very troubling. And I voted for him hoping for strong climate action, and so far his actions have been downright pathetic. And then this thing about offshore drilling with a claim that somehow it will make Republicans vote better in the future? I think not.
Bonnie, he hasn't said he even wants to go, eighties or not. He's said he's willing to for the good of the country. So if it's not for the good of the country, who is it serving?
First, whoever is to be appointed should make some public statement denouncing the USSC's disastrous corporate campaign spending decision. After that, announce them as the choice to replace Stevens.
Because that decision is a current topic and is widely unpopular, it could become a plus for the Dems this fall.
Even most Republican voters don't like the decision, but the Party loves it, so it sets up a great wedge issue --make the Repubs defend it.

Stevens is going. Might as well make the replacement issue advantage the Democrats. It's not making the Supreme Court picks an election issue that has gotten us the movement ideologues we have now. Either those corporate constitutional revisionists get challenged, or we'll end up with a Constitution we don't want, and a version of history that never happened.

If Obama has the courage of his convictions - per his SOTU scolding of the corporate 5 - he could make this the issue that motivates the base and deflects from the negative aspects of the HC plan.

That's a big IF, though, given his finger-in-wind timidity.
Hi, Paul. I take that to mean you're supporting Scenario 3. Good point about corporatism, though I think that's a hard one to get across to the public. If people understood that well, they'd be worried about it a lot more in a lot of areas. As many have noted, Corporatism infects both Democrats and Republicans; the difference is that the Democrats can bear speaking about it while the Republicans run afoul of their “pro-business” rhetoric. (I put “pro-business” in scare quotes because I don't know that I agree the Republicans are even as pro-business as they allege to be. They favor a kind of business establishment, but there are many businesses that don't take a party line view, similar to how the Republicans don't have a lock on being “pro-family.”)

Slightly drifting off topic, but I was heartened by this story about Best Buy taking issue with the US Chamber of Commerce representing their views on climate iniatives. The Chamber often presents itself as if it were synonymous with business, just like the AARP talks like it's the last word on seniors. These are important groups, but there is more to representation than listening to them.
Corporatism in general is a hard issue to reduce to a simple slogan, but the public rejection of that USSC decision is solid. Big numbers against, so there's no public confusion where the issue is concerned.

I don't think the Dems shy from populism because it doesn't advantage them, but that they fear corporate campaign funding backlash. That's their biggest problem in my opinion -- they don't trust the people.

The last Democrat to speak populism was Gore in 2000 -- The people versus the powerful. Obama does populist head-fakes, then doesn't deliver.
This is a populist issue that doesn't cut so far into the ideological divide, and is almost a no-brainer walk-over.

That's why they probably won't use it.
interesting analysis, thanks. r.
Paul, I agree with you on all that.

It's a shame the Democrats are not willing to invest in building a case. Part of it is that the Republicans have told enough stories for enough time that now they can speak in shorthand, almost like how I like to talk in URLs when I can, pointing back to longer descriptions of points I have to make, so I don't have to re-make them. They've built up quite a library of basic core beliefs they have names for. The Democrats, less so.

In fairness, I think it's easier for the the Republicans because the basis of many of their beliefs are “diversity is an unnecessary pain. we should care more about ‘regular folks’ and less about the fringes trying to dilute us.” Much of this is just code for racial, religious, or economic selectiveness. But ignoring that, its power comes in how simple it is to get everyone to agree when everyone is of the same kind. By going after more legitimate diversity, the Democrats have a harder message. Again even ignoring the ethical goodness or badness, the Pro-Choice message is complex just because it is not simply Pro-Abortion, no matter how the Republicans try to reframe it.

Still, the Democrats should be out there telling the Corporatism story so that later, at election time, a politician can just say “Yeah, that corporatism thing.” and people will get it. In the flurry a few weeks ago, the mere mention of “legal people” immediately activated those “in the know.” But getting the message across to regular people, even though it's within their grasp, was hard because it simply wasn't familiar and so there was nothing to refer back to via anaphor of any kind.
kl, glad you enjoyed it. Thanks for voicing your support.
Ultimately, the ball is in Stevens' court. He picks the time when he wants to resign. And while Obama can do some preliminary short listing, it will be an academic exercise until the time that it actually happens. While it's fun to think about the scenarios, it's actually much more pressing that we think about foreign affairs, which have been on the back burner for quite some time.

I was at a dinner party tonight saying that I consider it my job to be on top of foreign affairs, but the current situation in the Middle East is almost mind-boggling in its complexity lately, and I can't ever remember a time when analysis here was so complex. You can isolate every country from Israel to India, and you have to take every one of them (and their neighbors and the world economy!) into account when you're analyzing the situation. It really is five dimensional chess right now.

And the situation gets dicier every day in Israel, Iraq, Iran, and Afghanistan in particular. That's what's bothering me right now.
lefty, fair enough with respect to foreign affairs, but I don't see the link to here (other than to say you worry more about other things). I raise this issue mostly to highlight the dangers of assuming it doesn't matter. It's true that the issue of the Court might seem less important now, but keep in mind that the Court effectively decided we should have Bush, not Gore, so it's not an unimportant detail.
Sure hoping the next SCOTUS nominee is a Catholic. Then they'll have enough members to join our D.C intramural basketball league. I've always wanted to post up Thomas, slam dunk on Scalia and block Roberts' shot into the eight row.
Interesting analysis of what might come. Thought I read that Justice Stevens wants this president to be the one to choose his replacement. He seems to want to give Obama time to plan his course and to find someone strong. Having read your thoughts and those of others given in comments here, I hope the time he is trying to allow helps the best possible candidate rise to the top and be the one worth having. Whenever and however it comes to be, I hope for true wisdom to have a say.
Nice analysis, Kent - I'm thinking he'll go centrist ... and as you say, "He continues to make concessions without getting anything in return." Most annoying - I just want to send him a note: "Don't let mediocrity be the enemy of excellence." That's what I THINK is happening in the name of "compromise."
anna, I hope so, too. But I figure it doesn't hurt to raise issues and make sure there's some collective consciousness about the opportunity to make mistakes.

Travellini, I fear he's not seeing it as mediocrity, but as legitimate things that are proper to trade. I think in his desire to be trusted by others, he trusts a little more than he should. And I dearly hope he doesn't make the same mistake with our civil rights. He may not think of a Court appointment as synonymous with civil rights, but you can see why I would phrase it that way.
Interesting analysis and rated. I think, as you say, Obama stands a good chance of appointing a more centrist "swing-vote" jurist -- he may feel compelled, especially after the healthcare victory, to keep his every move as near to center as possible.

Stevens' departure from the court will be particularly devastating to me, as I love reading his opinions. But in light of his age and recent difficulties in oral argument, I'd guess it's unlikely he'll choose to wait until the next congress to retire.
Nothing matters more than a SC pick in this land. Of three "co-equal" branches of government, the SC is "first amongst equals." Since Marbury v. Madison, when the SC took upon itself the unconstitution position of being able to invalidate legislative mandates, they have clearly had the upper hand. This is why, more than any other issue, who we elect as president has meaning, and why one cannot waste votes at that level.
That said, this is a very good analysis Kent. But there may be other potential outcomes. Sen. Kyl is already making the "stupid" noises, ie. seeing who shakes with fear over a filibuster threat. And I think the electorate is hypersensitized these days in no small measure because of the Citizens United decision.
I think Stevens retires soon, and Obama has to have a mid-left candidate. After the health care wrangling, which with more time passing appears to have been a least in part legislative ju-jitsu on Obama's part, I am not ready to give up on him and any potentially progressive bones he may have in his body. I do not believe he will pre-negotiate with himself on this one. We may end up more like scenario #1 then. Obama has know about Steven's plans for months now; Stevens telescoped his intention with the hiring of a single (rather than the usual 4) law clerk for the current session.
I expect a mid-lefty who causes the already lathered up right to get more and more foamy. While ignorance can be sustained for generations, being agitated cannot. The right cannot continue protesting every word that emanates from the president, his advisors and even his wife.
On the other hand, as Confucius says, violence is the last refuge of the ignorant. Therein lies my only caveat.
first, obama's 'concessions are an accurate reflection of his position, he is not a warrior of the left. dispiriting, i know, but face it.

second, the process of getting a new justice will proceed without you. god only knows what kind of horse-trading will go on behind closed doors, but the closed doors are the operative phrase. neither you nor any of the serfs are consulted about these matters. or indeed, anything, once the quadrennial battle of the roses has settled which duke shall be king.

the best scenario you can hope for is that a conservative candidate is suggested, found to be a pedophile, and in the ensuing revulsion at the establishment, a progressive candidate slips in.

your analysis has the force of astrological predictions: gossip below stairs.
Mr. Fawkes, I didn't mean to overlook your remark, I just didn't know what to say exactly. I guess I'll just thank you for showing your team spirit by visiting.

Leah, it will be a crime (figuratively, but with all the effective force of not just one but many real ones) if he thinks a victory on one topic obliges him to give away any ground whatsoever in the Court. I'm sure you know that. But I had to say it.

Tim, nice to see you. Mid-left would be better than center, I suppose. I didn't want to divide up the field too much. At minimum, it must be someone who can hold the line on civil rights, and perhaps have some common sense about this dangerously slippery matter of treating corporations as humans.
al, I have to say you can be a real eeyore sometimes with your analyses, but at least this time you used some more colorful than usual metaphors of doom. And I'll give you that you have a pretty novel Scenario 4 there. Thanks for visiting.
Hi, RW. Glad you enjoyed the piece. Thanks for the support and cultural cross-references.
Hi, Jane. Some interesting thoughts there. I don't know that I would try to change your mind on most of it. Sounds like you've got fodder for a post of your own at some point. But for now, I'm glad I had a place for you to feel you could vent a little. I do think you're right he's more centrist/moderate/conservative than many in the Democratic party allow themselves to think. (The Republicans think otherwise, but it's hard for them to be objective. Still, by triangulating from the opinions of those on the Right and those on the Left, it's possible to place Obama pretty objectively.)
If this were the perfect world, Obama would appoint a supremely qualified jurist with the ideological bent of old new lefty. However, this is not going to happen under any circumstances. Given the nature of Supreme Court appointments lately, especially with the nature of the US Senate, we can expect an appointment of a judicial moderate that has no preconceptions about abortion, guns, or corporations. We will expect to see GOP bluster (and possibly filibuster) given the mood they're in.

Two observations: Appointments to the Court, unless they're laser light clear ideologues like Scalia are cast as centrists to begin with. Some great jurists like Earl Warren or Hugo Black or even David Souter showed their mettle and transformed themselves once they were appointed for life on the Court. Remember, Judge Stevens was a Republican judge appointed by Richard M. Nixon. I hope that the centrist who will eventually be appointed will move in that direction on the bench, but there are no guarantees.

How the replacement will affect or interact with the elections is almost nonexistent. All politics is local, and the issues on the ground (like unemployment, jobs, the health of the local economy) will be the ultimate way the elections will go. Supreme Court justice appointments have never in my opinion, ever been a significant factor in American electoral politics.