Karl Rove, the former senior adviser and deputy chief of staff to President George W. Bush, opined in a Wall Street Journal Op-ed this week that President Barack Obama may have painted himself into a corner as the battle looms over retiring Supreme Court Justice David Souter’s replacement.
“Mr. Obama will pay a price for voting against Mr. [John] Roberts and Samuel Alito after calling them ‘qualified’ and lauding their temperament, humility, excellence, passion for the law, and respect for precedent," Rove wrote.
“Both won confirmation with bipartisan support. By voting against well-qualified conservative nominees, Mr. Obama lost the ability to argue that a well-qualified liberal should be given the benefit of the doubt,” he argued.
Rove also highlighted then-Sen. Obama’s vote to allow a filibuster of Alito, making it at best supremely awkward for President Obama to now insist that his nominee has a right to a full Senate vote.
Combative Republicans will be very mindful of the Obama history as the latest political drama unfolds. Furthermore, as Rove points out, there is also an important procedural item swirling in the mix.
Rule IV of the Senate Judiciary Committee requires that a motion to end debate and bring a nominee to a vote pass with 10 votes in the affirmative, one of which the minority must cast.
“Before last week,” noted Rove, “that Republican was likely to be Arlen Specter, but he’s now a Democrat. Mr. Obama will have to consider if his pick is likely to win over at least one Judiciary Republican.”
Some of those entering the Supreme Court derby early on are: Sonia Sotomayor, judge of the U.S. Court of Appeals for the 2nd Circuit and potentially a history-making first Hispanic on the court; Elena Kaga, solicitor general of the U.S. Justice Department and former dean of Harvard Law School; and Diane Wood, judge of the U. S. Court of Appeals for the 7th Circuit.
Also adding to the Obama dilemma, wrote Rove, is the matter of timing. With just over 100 days in office, there just hasn’t been time to vet the prospects.
This rush to judgment is made all the more significant when cast against the backdrop of five administration nominees already found stained with the ugly blemish of unpaid taxes.
“Mr. Obama knows he has used up any capital that could have purchased forgiveness for such offenses by a Supreme Court nominee,” Rove wrote.
Looking on the Bright Side
Despite the obstacles, Obama has several things working in his favor, Rove wrote.
“First, Democrats control the Senate. It helps a great deal to have the Judiciary Committee chairman as an ally,” he noted.
Furthermore, he recalled, Republicans generally do not handle Supreme Court nominees as roughly as do Democrats.
“Consider their treatment of President Bill Clinton’s picks for the high court. Ruth Bader Ginsberg was confirmed by a 96-3 vote in 1993. The following year, Stephen Breyer was confirmed by a vote of 87-9. There were no fireworks at either hearing — and nothing close to what Democrats did to Robert Bork and Clarence Thomas,” Rove reminded.
Then there is the matter of Souter turning out in practice to be reliably liberal. Souter was appointed by former President George H.W. Bush — but the ostensible conservative often voted along liberal lines.
“An Obama nominee is also unlikely to dramatically change the court’s direction,” opined Rove. “A liberal replacing a liberal will smooth the path for most potential nominees.”
Finally, on the positive side of the ledger, there is the simple numbers game. Only 23 of 158 Supreme Court nominees have been rejected or withdrawn — and only 14 when the president’s party controlled the Senate.
‘Empathy,’ ‘Understanding’ – Hogwash
Rove’s primary advice for Republicans is that they should explain their view of the judiciary’s proper role and why Obama’s touted desire that a nominee have “empathy” and “understanding” is an “amorphous basis on which to pick a justice.”
What’s more, opined Rove, what Obama really wants isn’t a justice with “empathy” and “understanding” — he wants a liberal, activist Supreme Court justice.
“Senate Republicans may not be able to stop Mr. Obama’s nominee, but they can explain to the public the party’s reasons for opposing judges who think of themselves as legislators with life tenure,” he concluded.
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