In the wake of President Obama’s re-election, there are a lot of articles about Obama’s possible opportunity to transform the Supreme Court during his second term. That possibility is a very real one, as I’ve discussed.
I’m surprised to see, in this Wall Street Journal article, that one conservative legal commentator has opined (according to the article’s paraphrase and internal quote) that “[b]ecause Republicans lost the presidential election and a couple of Senate seats, … Mr. Obama was entitled to ‘a lot of deference’ should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee.”
I think that this view is badly misguided. The Sotomayor and Kagan confirmation battles—both of which involved replacing a liberal with a liberal and both of which, of course, came after Republicans lost the 2008 presidential election and lots of Senate seats—show that Republican senators have moved decisively away from the deference-to-the-president model that Democratic senators long ago abandoned. I don’t see why anyone would think that Republican senators would or should unilaterally return to that model.
Further, conservatives shouldn’t set a lower bar for a nominee who is replacing a liberal justice than for one who is replacing a conservative. Instead, we should make the case that conservative judicial principles are the right judicial principles and that anyone who doesn’t embrace those principles is unfit for the Court. We need to work to build a Court with a supermajority of sound justices, not to preserve the unsatisfactory status quo.
To be sure, absent a filibuster, the sizable Democratic majority in the next Senate virtually guarantees that an Obama nominee will be confirmed. But conservatives should fight the fight on grounds of judicial philosophy, and Obama and Senate Democrats should be forced to pay a high political cost for a bad nominee.