Our nation's capital has been buzzing for some time now about the possibility of Justice Stevens's retirement, and Adam Liptak's piece in the NYT this weekend heightened speculation.
Now Senator Arlen Specter has jumped into the discussion with a suggestion that Justice Stevens wait until next year. A Supreme Court appointment in the current political atmosphere could, Specter fears, produce a filibuster that would tie up the Senate. Next year, he thinks, there would be more chance of reaching consensus on a nominee.
I'm sure Senator Specter knows a lot more about the Senate than I do, and I wouldn't trust my predictions over his about what would happen in that body. But boy, if I were President, I sure would want to send my Supreme Court nominee over to the Senate now, when there are 59 Democrats sitting there, rather than take my chances with the new Senate next year. Who knows how many Democratic Senators there will be then? I'm not as pessimistic about the Democrats' chances in the mid-term elections as some people, but the President's party does typically lose some seats in the mid-terms. Let's say that the choice was between having the Supreme Court appointment in the current, somewhat poisonous political atmosphere, but with 59 Democratic Senators, and waiting until next year, when things might have settled down a bit, but with, let's imagine, only 54 or 55 Democrats in the Senate. If you were President Obama, which would you prefer?
I'll take the former, thanks. I'd rather have more votes, and I also don't think a filibuster of a Supreme Court appointment would really be all that easy. The whole nation pays attention when there's a Supreme Court appointment, and a filibuster would look excessively obstructionist. It would really paint the Republicans as the "party of no" going into the mid-terms.
So while, of course, it's not really a choice that the President can make -- it's up to the Justice to decide whether and when to retire -- if I were President, I would prefer the retirement now. I would say that Senator Specter's fear of total Senate gridlock on this appointment is an overly exaggerated fear -- a bogeyman, if you will. No, a chimera. An apparation? A phantom? Oh, if only there were a good word for it.
