President Obama will select a nominee with whom none of us will be satisfied. He won. We lost. That’s his prerogative. Further, he is now replacing Stevens, meaning that Senators of all stripes are likely to give him even more deference than they did for now-Justice Sotomayor.
It is a long shot at best to stop one nominee. We can’t stop two. The Democrats still have fifty-nine Senators. Senators Brown, Collins, and Snowe won’t filibuster a nominee, especially when such a filibuster would largely be associated with opposition to Roe. While a filibuster might be justified, we would look like hypocrites for trying, and would surely fail even if we did, expending valuable political capital in the process. . Exposing a single judicial extremist as such, along with some sort of scandal – the kind that would typically end a potential nomination in the vetting process (granted not this White House’s specialty) – might be enough to stop one nominee. Even if it did, the White House would not make the same mistake twice.
A SCOTUS fight could potentially rile up their sleeping base. Unfortunately, the Supreme Court has become, in terms of domestic policy, the most important branch of government. Activists on both sides see the Court as a defining issue in Presidential elections even if the electorate writ large does not. Our base is angry and motivated, and will remain so on account of other issues regardless of a Supreme Court fight. A fight, though, might galvanize and organize the opposition in a way that not much else could at this point.
The Case for Biden
Vice President Biden is a liberal Democrat. If each of us came up with a thousand unique names of people we’d like to see on the Supreme Court, he wouldn’t appear on any of them. His time on the Judiciary Committee illustrated that he has little respect for the Constitution and would prefer to engage in mental gymnastics to reach the political conclusions that he wants rather than adhere to the Constitution. Surely, then, he should not sit on the Court, yet any Obama nominee will fit a similar characterization, albeit typically from the bench rather than the legislature.
That said, during his time in the Senate he showed a willingness to buck his party on a variety of votes on issues ranging from abortion to Iraq. While I have major problems with any Catholic who supports legalized abortion, his vote to fund the troops even while fellow Democrats were “taking a principled stand” demonstrated that he is not as blindly partisan as many of his colleagues. Although he would typically side with the liberals of the Court, Biden’s votes might actually depend more on the cases than the litigants. I can’t say that we would get a fair shake from him, but I think he could be considerably more even handed than many of the alternatives.
Sticking on that theme, flawed though I think the Vice President is, there is something decent about him. For those of you who missed it, I would encourage you to take a look back at his eulogy for the late Sen. Strom Thurmond. In his discussion about his relationship with Thurmond, he talked about their deep divisions, reconciliation of some of those divisions, and how that process served to forge a deep friendship. Biden entered politics largely due to his support for civil rights. While I would disagree with many of his policy positions on the issue, it is my view that he, unlike many other elected officials, actually entered politics to serve a purpose greater than stroking his ego. He has a basic appreciation for fairness and decency. He championed a cause that was controversial at the time but is now taken for granted. While his inexcusable position on life is certainly at odds with those facts, I think that that is more the exception than the rule.
Age is another important issue that bodes well for the Vice President. Biden is 67, decades older than some of the others under consideration. It would be extraordinarily difficult to stop any nominee, so why not get one who won’t be there for too long.
If Republicans were to publicly offer the President easy confirmation for Vice President Biden, they would be putting him in an extremely awkward spot. The President has obviously shown great trust in Biden by choosing him as his second in command. Biden has extensive experience in the area, having chaired the Senate Judiciary Committee for eight years and served thereon much longer. If the President nominated Biden, I think we’d end up with the best nominee for the reasons I have stated. If the President did not nominate Biden, we would be in a better position to fight his nominee. We would have demonstrated to the American people that we were willing to compromise but that the President preferred to pick a fight.
I don’t like the sound of Justice Biden any more than anybody else, but politics is often described as the art of the possible. Given the current circumstances, I think that he would be the best we could do. Publicly offering the President an easy confirmation would put him in an awkward position. He would either nominate a man who is at least remotely palatable to use, or have to explain publicly a) why he wants a fight when a man he trusts was offered to him and b) the inadequacies of his Vice President.