Law & the Courts

The Myth of the Consensus Supreme Court Nominee

Supreme Court justices in October 2010. (Tim Sloan/AFP/Getty)

One branch of conventional wisdom that is taking hold in the media is that President Obama should seek to appoint a “mainstream” nominee to the Supreme Court, one who has not ruffled senatorial feathers in the past and who could glide through the confirmation process. This, claims the purveyors of conventional wisdom, would put significant pressure on Republican senators enmeshed in swing-state reelection battles — such as Mark Kirk of Illinois — and cause a unified Republican front to dissolve in chaos.

This is what CNN host Jim Sciutto recently called “the Goldilocks candidate.” Not too hot, not too cold, just right. The theory is that such a “consensus” candidate would be hard to defeat. After all, America loves a “moderate” who would bring both sides together.

The problem is that it’s hogwash. Or as Justice Scalia might have called it, “jiggery-pokery.” The truth of the matter is that no such nominee exists. It’s like the Loch Ness monster of the Left, except that some people have actually claimed to see Nessie. President Obama simply isn’t going to nominate someone that does not meet the liberal ideological litmus tests he has defined for the job. If he were looking to build consensus, it would be a historical first in his administration.

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Instead, Obama is looking to reshape the Court. There are four very solid and unified votes on the Supreme Court’s left — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. They occasionally get help from one of the “swing” Republican appointees on the Court. Most often, that justice is Anthony M. Kennedy, who blazed the trail with the liberals for a constitutional right to homosexual marriage in a series of cases culminating in Obergefell v. Hodges and solidified (by vote count, not by legal reasoning) a then-wobbly abortion jurisprudence in the infamous Casey decision.

#share#Justice Scalia, on the other hand, was part of a looser and less “reliable” group of five Republican appointees. Certain of those justices might just as likely support an individual right to bear arms as they would cross the ideological aisle to uphold Obamacare against constitutional or statutory challenge, which the chief justice did on two different occasions.

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Taken for granted in the liberal–conservative split on the Court is that the liberals do not generally fracture. On the most controversial cases, they are one. That is so despite the fact that many of the monolithic four were described in similar glowing terms by the media. CNN’s Supreme Court analyst Jeff Toobin once described Elana Kagan as “very much an Obama-type person, moderate Democrat, a consensus builder.” Toobin claimed at the time that he could not predict what sort of ideology she would develop. Yet it is taken for granted now that Justice Kagan is a reliable vote for the Left on the most controversial cases before the Court. That, too, will be the objective for Justice Goldilocks.

Another reliable liberal would move the Court solidly into the liberal camp. No longer would there be a question of whether a swing justice would break with the liberals or conservatives on the Court. Instead, the wish list of Democratic decisions — overturning the individual right to bear arms, regulating political speech, redefining property rights — would all be realized. And that is what this fight is all about.

#related#President Obama is not interested in appointing a candidate who would be “gettable” by conservatives in any given case. The president wants to appoint only someone who would appear that way for purposes of the Senate confirmation process. Rather than Goldilocks, we’d get instead the Big Bad Wolf in sheep’s clothing.

United Republican opposition should not come as a surprise in this case. Whoever the nominee is, he or she will not, by the president’s design, be acceptable to those devoted to the Constitution and the rule of law. The objective here is to make the Court a dependable supporter of the Democratic policy agenda for the next generation and beyond. Goldilocks is a fairy tale.

Shannen W. Coffin is a contributing editor of National Review. He was a senior lawyer in the George W. Bush Justice Department and White House.

Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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