As they did with the Sonia Sotomayor nomination, Republicans are telling their base that they're gearing up for a big fight, while telling the press that there isn't really going to be a big fight. Two Republicans -- John Kyle and Jeff Sessions -- have brought up the filibuster, but few believe they'd actually carry it out. An expert on this sort of thing explains:
The two Republicans' comments are likely to have little influence on Obama as he ponders his selection, said Trevor Parry-Giles, a communications professor at the University of Maryland and author of a book on the Supreme Court confirmation process.
"I don't think they're going to give him an easy time of it, no matter who he picks," Parry-Giles said.
Choosing a Supreme Court justice "has become a ritualized process" in which early statements by opposition leaders like Kyl and Sessions are meant to galvanize their political base rather than advise the president, Parry-Giles said.
"What they stated was sort of the obvious," he said. "You could have written the script before they said it."
I don't have much doubt that they did write the script beforehand. Like the rightwing blogosphere, they don't seem to feel the need to have an actual nominee to criticize. No matter who gets nominated, they'll attack a straw man version anyway, so what's the point of waiting? It wouldn't surprise me if they had this whole process written out beforehand, like a wire service obit of a celebrity.
And what better way to start this Kabuki than to warn the president about nominating a certain type of "radical" judge, then later slapping that label on whoever the nominee happens to be? "We warned you that there'd be trouble if you did this," they'll say. "You only have yourself to blame."
Then some histrionics, some talk radio blowhards whipping up hatred and fear, a couple of poorly chosen (and probably racist and/or sexist) comments, and finally -- like the Sotomayor nomination -- an easy confirmation by a comfortable majority. Meanwhile, Republicans rake in the cash from the reliably fearful and gullible base.
Republicans' filibuster threat -- empty though it is -- hinges on one qualification. They say the nominee must be "mainstream." And therein lies a problem; what Republicans consider mainstream everyone else considers insane. While you'd be hardpressed to find a Republican who believes the new healthcare reform law is constitutional, the University of Washington was hardpressed to find a constitutional law expert who'd argue it isn't. For a debate on the issue, they couldn't find anyone who'd take the Republican side. In the legal realm, Republicans have no business talking about the "mainstream."Take the GOP's ideal Supreme Court Justice, Antonin Scalia. Among the "mainstream" decisions he's signed onto were Bush v. Gore and the idea that the state has every right to execute someone who can prove they're innocent.
[Scalia's dissent in In re Davis [PDF]:]
The Georgia Supreme Court rejected petitioner's actual-innocence claim on the merits, denying his extraordinary motion for a new trial. Davis can obtain relief only if that determination was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. It most assuredly was not. This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is actually innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged actual innocence is constitutionally cognizable.
Scalia was joined in his dissent only by his handpuppet Clarence Thomas. "[I]f the attorney for Troy Anthony Davis can establish his innocence, he should be freed not put to death. Makes sense, right?" asked Mark Karlin for Buzzflash. "Not for Mr. Scalia (or Mr. Thomas)."
I ask you, do you think that advocating for the execution of innocent people is a mainstream position -- or would you call that radical? Scalia speaks (and Thomas parrots) often of his love for "original intent." Do you really believe that the framers of the Constitution intended that innocent people be put to death? Scalia apparently does.
Given the sort of judge Republicans would like to see on the Supreme Court, I think they get to shut up about who is or isn't a "radical." But proportion is a concept beyond them -- you're either a good judge or a Communist, either a fine legal mind or a wild-eyed crazy. No matter who Obama nominates, they'll attack that nominee as some radical to be terrified of -- if only to rake in the money thrown at them by their cowardly base.
But you can't get more radical, more insane, more poorly suited to the highest court than Antonin Scalia (Thomas isn't as bad, because he doesn't have his own mind). It won't be the President's eventual nominee who'll be outside the legal mainstream, it'll be that nominee's Republican critics.
-Wisco
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