Jonathan Chait

The Next Court Fight Will be Armageddon

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Jeff Greenfield anticipates the next judicial battle. President Obama's two Supreme Court nominees to date have merely frozen in place the Court's current ideology. But there's a strong chance that one of the five conservative justices will have to depart during Obama's term. And then, look out:

If there is a liberal nominee posed to replace a conservative, we are sure to hear Republicans arguing for the merits of a filibuster, while Democrats attack it as an invalid tactic. We will hear Republicans arguing that ideology is indeed a legitimate ground for voting against a nominee qualified by experience; while Democrats, who once asserted precisely that point, will argue that qualifications and competence are what matters.

We may even hear conservative academics argue, as one prominent liberal law school professor did after the disputed 2000 election, that the Congress should simply leave the position vacant until voters decide in 2012 who should be nominating justices. Indeed, the closer we are to the 2012 election when and if a conservative justice retires, the more intense the political fight will be.

I don't think there's any way Republicans will allow Obama to replace one of the five conservatives on the Court unless he agrees to pick the sort of nominee who's far to the right of standard Democratic SCOTUS picks. (I suppose the exception would be if Democrats somehow continue to control close to 60 seats, forming a majority in conjunction with Olympia Snowe and Susan Collins.) There will be a filibuster of basically anybody Obama nominates. The question will be if Democrats respond by threatening to change the rules and abolish the judicial filibuster, as Republicans did in 2005.

 

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