As I suggested earlier today, there is no reason to expect that a Supreme Court justice appointed by President Obama will be significantly worse than Justice David Souter has been. But there is still less reason to hope that he or she will be any better than Souter. It has been a long time since the Democratic Party seemed capable of generating Supreme Court appointees who had any reliable notions of judicial restraint, let alone an attachment to originalism. This is the party that once gave us justices like Felix Frankfurter, Robert Jackson, Fred Vinson, and Byron White–all of whom would find themselves on the outs with today’s Democrats, and with the prevailing habits of mind among liberal legal scholars. It says a lot about the Democrats that the last Supreme Court justice they appointed, for whom anyone wedded to judicial restraint could have any real regard, took his seat in 1962.
With 59 or 60 Senate seats in Democratic hands, there is really nothing Republicans can do to prevent President Obama from appointing whomever he wants. He need only satisfy his own party, and that shouldn’t be hard. So what should Republicans do? Herewith some preliminary thoughts (I’m assuming the worst sort of nomination, of course, but not without cause):
1. Slow the probable rush to confirmation. Democrats will not be interested in spending much time on this. Why should they be? It’s up to Republicans to throw some sand in the gears. Why should they bother? In order to–
2. Develop an argument. Get witnesses before the confirmation hearings, write a strong minority report on the nominee’s record, question the nominee him- or herself aggressively. The pattycake played with Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994 is a precedent to be avoided, not followed. Pointed questions about controversial past decisions are definitely in the strike zone, in my opinion (and I said so when George W. Bush’s nominees had their innings too). The more a nominee’s fitness is probed, the more unacceptable he or she might be made to look to the American people. This is not “Borking” if it is done with fair argument about the legal issues at stake. But however bad a nominee looks,
3. Don’t go near the filibuster. It’s not only hypocritical after so many GOP senators professed their opposition to it while George W. Bush was president. It’s also just plain wrong. Supreme Court nominations deserve an up-or-down vote. But in order to reach a unanimous consent agreement on the norms governing floor debate on the nomination, Republicans should push for as much time as is reasonably possible. Again the development of the argument is the thing, and that takes time. And finally,
4. Stick together as a party opposed to the nominee. Sure, the Democrats and the White House will try to paint the GOP senators as nasty naysayers. But did it ever do the Republicans one bit of good that Ginsburg was approved by a 96-3 vote and Breyer by 87-9? When those two justices proved to be just as activist as every reasonable observer expected them to be, there were damn few senators who were in a position to give an acceptable answer to the question, “So what did you do about that when you had the chance?” Given the sort of nominee I expect to see from President Obama, it would be a disgrace for the Republican Party if the affirmative votes totaled more than 70. After all, a party unwilling to stand for something when it is in the weaker position won’t persuade many voters that it deserves to be in a stronger one. And every Supreme Court nomination is an opportunity to revisit basic constitutional principles that are enduringly popular with the American people, whether you win the vote or lose it.
Do I expect Republican senators to take my advice? Well, let’s not ruin a good Ought by turning to the ugly Is. But a guy can hope, can’t he?