Diary

Poor Old Justice Ginsburg

With the well now poisoned with the stroke of the presidential pen, the chances of Obama to remake the federal judiciary- particularly the Supreme Court- take on a more serious tone.  This single action coupled with the midterm elections and a Senate with a Republican majority make Obama’s job that much more difficult.  [mc_name name=’Sen. Harry Reid (D-NV)’ chamber=’senate’ mcid=’R000146′ ]’s rule change affects lower court judicial nominations and those in the Executive branch, but not Supreme Court Justices.  Should a Supreme Court vacancy occur, Obama is essentially boxed in and subjected to a Republican-led confirmation process.  If the GOP caucus holds together, they could dictate to Obama who the next Supreme Court Justice would be should a vacancy occur.  In short, he would never get a liberal ideologue through cloture which would result in a huge embarrassment and stain on his legacy.  He would be left with one choice- nominating a moderate.

We can look at the current Supreme Court line up and it becomes obvious that Ruth Bader Ginsburg would the most likely to resign.  Roberts, Alito, Sotomayor and Kagan are relatively young and going nowhere barring some unforeseen event.  Kennedy relishes his role as the swing vote on the Court while Scalia has become a mainstay and also relishes his role.  Breyer also is not going anywhere.  That leaves Ginsburg whose medical problems are well-known as well as her age considerations.

Should she resign as many on the Left were hoping earlier this year in order to allow Obama to nominate a more liberal voice while the Democrats held the Senate, it is highly doubtful that even an objectively greatly qualified liberal would make it past cloture.  Harry Enten at FiveThirtyEight estimates that should Obama nominate a liberal in such circumstances, even Sue Collins- the most “liberal” Republican in the Senate- would present only a 10% chance of voting for cloture.

So who would be the most likely candidate to make it through a cloture vote assuming Obama’s approval ratings remain in the toilet and [mc_name name=’Sen. Mary Landrieu (D-LA)’ chamber=’senate’ mcid=’L000550′ ] is history come December?  Obama will not appoint a Republican to the Supreme Court.  The most likely candidate to survive a cloture vote would be a moderate Democrat with average qualifications.  In short, Obama would be looking for someone akin to a Stephen Breyer.  An extremely well qualified liberal has no chance of ever being confirmed.

Of course, one cannot truly predict how a nominee will eventually turn out.  David Souter was a Republican nominee who turned out to become a staunch liberal on the bench.  Ginsburg has evolved into a reliable liberal voice on the Court, yet was suggested by [mc_name name=’Sen. Orrin Hatch (R-UT)’ chamber=’senate’ mcid=’H000338′ ].

Obama would like to nominate someone with “real world experience,” that is someone who came from the political arena- possibly an ex-Governor or Senator.  Appointing a moderate Democratic ex-Senator would have particular appeal since there is that collegiality of the Senate to consider.  There are only two names that make any sense in this area: Minnesota [mc_name name=’Sen. Amy Klobuchar (D-MN)’ chamber=’senate’ mcid=’K000367′ ] and former Colorado Senator Ken Salazar.  Although I believe Klobuchar would receive greater deference in a Senate hearing than Salazar, her chances are also slim given her liberal voting record.

Two former Governors have been mentioned- Jennifer Granholm of Michigan and Deval Patrick of Massachusetts.  However, both have a long record of television appearances and statements that would turn off many Republicans.  They may be “qualified” in the legal sense, but they are political poison.

He could reach into the state supreme court pool since many of them have to win elections to get there.  One intriguing name is Goodwin Liu of the California supreme court, but since it is California its doubtful many Republicans would go for that.  Leah Ward Sears of the Georgia court has been mentioned in the past.  However, she comes with a record of dissent in many cases where she took the liberal road.  A less controversial appointment would be former North Carolina Associate Justice Patricia Timmons-Goodson who has the added advantage of being a black female which could make a Republican filibuster more difficult.

The most likely candidates would be Sri Srinivasan of the DC Circuit or Neal Katyal of the Solicitor General’s office.  Katyal would be a little more difficult given his defense of Obamacare in the lower courts.  Srinivasan sailed through a previous confirmation process 18-0 in committee and 97-0 in the Senate roll call vote.  He additionally would break the Ivy League domination on the Court having graduated from Stanford.  He clerked for Reagan-appointed J. Harvie Wilkinson in the 4th Circuit Court of Appeals.

Should a vacancy occur, Srinivasan is your most likely appointment.  The moral of the story is that Barack Obama has made it more difficult to remake the federal judiciary in his liberal image.  After January, every lower court appointment with be screened with a fine tooth comb and possibly blocked.  Assuming the Democrats hold together and vote for cloture, it would take only a few Republicans to advance to a floor vote.  Given their history, the most likely to do so would be Collins, Murkowski and Kirk.  The change in the rules instituted by Harry Reid coupled with the actions of Barack Obama have made blocking appointments easier and more likely.

[UPDATE: Since writing this, Ginsburg was released from the hospital after undergoing heart surgery.  This only furthers speculation that she may resign at the end of this term despite her insistence to the contrary.]