Although this is just a warm-up act, it’s why we came. Barack Obamariding high, astride his still-growing Senate majority (first Specter, someday Franken?) — will nominate a liberal-leaning Supreme Court justice to replace one already in the liberal camp. When it’s all done, nothing much will have changed. The court will still be a 5-4 conservative-leaning court.
And yet, this nomination will be more than simply a scene-setter for Supreme Court fights to come. It should be a scene all unto itself.
Nothing is foretold. Sometimes you get a surprise nominee who disappears (see: Miers, Harriet). Sometimes you get a stealth nominee who stays for 19 years (see: Souter, David). But, whatever the ending, what you can count on — in the post-Bork era — is a long, nasty and vicious campaign to take you there. The winner ends up in genteel robes, but often only after a very public pantsing.
It’s in these Senate Judicial Committee hearings that the culture wars inevitably play out. What I mean is, you might want to brush up on your Roe vs. Wade case law. We’ll hear again about guns and gays and religion and, of course, bitterness. History tells us the nominee will try to say as little as possible about anything, and the rest of us will try to guess how he/she (almost certainly she) will interpret the ancient texts.
Obama knows how to play the game, if not always well. In his short time in the Senate, he was twice on the wrong end of the scoreboard.
This time, elbows flashing, Obama playfully knocked his press guy out of the way to announce the Obama rules: “Empathy” was in the new playbook along with respecting “the appropriate limits of the judicial role.” Obama said he would nominate “someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook.”
If you don’t think those are fighting words, you haven’t been paying strict (constructionist) attention.
The two surest bets in this process are that Obama will nominate a woman and that the words “activist judges” will ring throughout the land.
You’ve seen the various names bandied about: U.S. appellate court judges, former law deans at Harvard and Stanford. There are women all through the top reaches of law these days. Heck, there are women doing color commentary on the NBA playoffs. But there’s only one woman on the Supreme Court.
One of the smartest things I’ve read about the process, though, comes from Politico’s Fred Barbash, who predicts that Obama has more than gender in mind. He says Obama would seek a nominee who was very much like, yes, Obama himself.
And, of course, he will. Obama wants a liberal who doesn’t come off as an ideologue. He wants someone young, who will remain on the court approximately forever. He wants a constitutional scholar — Obama taught constitutional law at the high-powered University of Chicago Law School — who can get past footnotes. He wants someone who has more in mind than a 5-4 victory.
It will be fascinating to watch how Republicans play their hand. If the risks are great, that’s what makes it so fascinating.
Republicans will have to fight against whoever is nominated because they have no choice, not when party-defining issues come into play.
The problem for Republicans is that once they could count on winning most battles in the culture wars. Now, uh, activist justices on the Iowa Supreme Court, including Republican appointees, unanimously rule that gays should be allowed to marry. You’d think the ruling would have sparked great outrage in the heartland, but, somehow, it didn’t.
The polls show the game is changing. Even, uh, activist state legislators are starting to show the same thing.
Republicans know they have to worry about overreaching. This nomination battle may well turn out to be a fight to see who gets to define what is overreaching these days.
Obama has to worry about underreach — nominating a justice liberals believe can’t match Scalia-style firepower. And he has to worry about overreach — nominating someone who’s too easy for Republicans to attack.
It’s Obama’s first Supreme Court nomination, but it almost certainly won’t be his last. And if Obama lasts two terms, he might, in fact, get the chance to remake the court in his image. How this nomination goes may help you decide whether or not that’s a good thing.
Obama, with all the numbers on his side, will surely win this fight. But there’s winning and then there’s winning. Watching the hearings will be not unlike watching a prize fight. We see who lands the punches and how much blood is left on the mat. It’s not hard to keep score, and, besides, your friendly court-side TV analyst will be there to help.
And the stakes? Nothing will change this time, except the promise of next time. And maybe the time after that. And, yeah, maybe the time after that, too.
Mike Littwin writes Sundays, Wednesdays and Fridays. Reach him at 303-954-5428 or mlittwin@denverpost.com.
