3 Things You Need to Know About the Souter Supreme Court Vacancy

On the politics, the court, and the Specter angles.

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By Robert Schlesinger, Thomas Jefferson Street blog

There have been a number of good takes on the Souter retirement announcement today. Here are points on three angles I thought were most interesting/perceptive:

  • The political angle: Does this give the GOP an opportunity for traction? Josh Marshall argues, persuasively, that there is not:
  • Supreme Court nominations are extremely high stakes battles for partisans on both sides and each party wants to hit a nomination struggle with the most political muscle possible. President Obama has extraordinarily high personal popularity at the moment. His approval rating, while down a bit off the inaugural high, has stabilized and even tracked up a bit at a strong 60%. His party is nearing 60 seats in the senate. And the Specter party-switch, while perhaps not that significant in numerical terms, has left the senate Republican caucus deeply split and demoralized — with one faction savoring an emasculated, tea-bag-driven ideological purity and another disgusted with the party's ultras and anxious to reenter the actual national political conversation. In other words, it's about the worst footing imaginable for senate Republicans to try to defeat or stand united against whomever Obama chooses.

    The way things might play out differently is if Obama chose someone who made it look like he was fatally over-reaching — a nominee who could galvanize a sense that Obama's extremely powerful position right now made having a credible opposition party newly necessary. Unfortunately for the GOP, though, I just don't see that happening. He hasn't shown himself prone to mistakes like that, especially not errors rooted in excessive drama or over-extension. If anything the opposite.

    Nonetheless conservatives have already started laying out their lines of attack against oft-mentioned nominees, including pulling together a big conference call last night. And as Time's Jay Newton-Small points out, at least one Republican needs to support the nominee, thanks to arcane Senate rules.

    • Regarding the court's angle: Matthew Yglesias also points out that while in the short term this may not affect the ideology of the court, it is an opportunity to lay the groundwork for a longer-term shift. He also gives a strong defense of that dread species, "activist judges."
      • There's the Arlen Specter factor. As Yglesias points out, Specter has been, ahem, flexible when it comes to Supreme Court nominees, helping take down both Robert Bork but also Clarence Thomas antagonist Anita Hill; moderate during the Clinton years, but acquiescent as Bush (43) populated the court with strong conservatives:
      • If we were talking about Arlen Specter, guy who's trying to fend off a primary challenge from Pat Toomey, you could be sure that he'd vociferously oppose anyone Barack Obama nominated. But as Arlen Specter, guy who's hoping to avoid a tough primary challenge from the left, he ought to be easy to count on as a supporter. The overall impact of the Specter flip should be pretty modest but I bet this is one of the times it will flip a vote and that, in turn, will help flip the narrative around the whole thing.

        I'd go one farther. Having a modest-impact Specter rather than one trying to please conservative voters is a net gain by subtraction.

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