How the Upcoming Confirmation Battle Will Play Out

With Justice Souter retiring, President Obama will soon nominate a replacement. When that happens, it will be interesting to see how the process plays out politically, particularly in comparison to the two most recent confirmations, Justices Roberts and Alito.

Consider the general political playing field in July of 2005, when John Roberts was nominated. At the time, President Bush's approval rating was hovering near 45% and his disapproval rating was nearly 55%. Roberts, who was unquestionably a conservative, was nominated to replace the Court's swing vote, Sandra Day O'Connor, thereby making the Court considerably more conservative. Nevertheless, of the 44 Democrats in the Senate, 22 voted to confirm him.

By the time Samuel Alito was nominated, Bush's approval rating had dipped below 40% and his disapproval had spiked to nearly 60%. Though the Democrats put up more of a fight with Alito, he was still ultimately confirmed by a 58-42 vote (with four Democrats voting in favor).

Currently, President Obama enjoys an approval rating in the high sixties and a disapproval rating under 30. The Democrats in the Senate outnumber the Republicans 59-40. And Souter's replacement will not alter the ideological balance of the Court. So if the parties were really mirror images of each other--as so many people insist they are--the obvious conclusion would be that any qualified nominee Obama chooses, no matter how liberal, should be confirmed relatively easily. After all, Roberts and Alito, both staunch conservatives, were confirmed by comfortable margins under much more difficult political circumstances.

But, alas, the parties are not mirror images of each other. So while I expect whoever Obama chooses to ultimately be confirmed, I'm confident that the confirmation process will be much more difficult than it should be.

This morning, less than 24 hours after news of Souter's retirement broke, leading conservative legal voices are already slandering potential nominees. Here's Ed Whelan at the National Review:

Souter has been a terrible justice, but you can expect Obama’s nominee to be even worse. The Left is clamoring for “liberal lions” who will redefine the Constitution as a left-wing goodies bag. Consider some of their leading contenders, like Harold Koh (champion of judicial transnationalism and transgenderism), Massaschusetts governor Deval Patrick (a racialist extremist and judicial supremacist), and Cass Sunstein (advocate of judicial invention of a “second Bill of Rights” on welfare, employment, and other Nanny State mandates). Or Second Circuit judge Sonia Sotomayor, whose shenanigans in trying to bury the firefighters’ claims in Ricci v. DeStefano triggered an extraordinary dissent by fellow Clinton appointee José Cabranes (and the Supreme Court’s pending review of the ruling). Or Elena Kagan, who led the law schools’ opposition to military recruitment on their campuses, who used remarkably extreme rhetoric—“a profound wrong” and “a moral injustice of the first order”—to condemn the federal law on gays in the military that was approved in 1993 by a Democratic-controlled Congress and signed into law by President Clinton, and who received 31 votes against her confirmation as Solicitor General. Or Seventh Circuit judge Diane Wood, a fervent activist whose extreme opinions in an abortion case managed to elicit successive 8-1 and 9-0 slapdowns by the Supreme Court.

Later in the same post, Whelan warns that Souter's replacement may provide the fifth vote in favor of, among other things, "the invention of a constitutional right to human cloning."

While I ultimately believe that whoever Obama chooses to nominate will be confirmed, I think that his nominee, now matter how qualified, will receive virtually no Republican support.

The process will go something like this. First, Obama will nominate someone with impeccable legal credentials. Then, conservative "legal experts" like Crazy Ed Whelan will dig around and come up with some issue they find "very alarming." That criticism will undoubtedly involve a willful misreading of some prior judicial opinion or legal paper, but that won't stop the Rush Limbaughs and Sean Hannitys of the world from seizing on it and hyping it relentlessly. Ultimately, most Republicans in the Senate (with the possible exception of Senators Snowe and Collins) will cave to the Limbaugh wing of the party and vote against confirmation. The nominee will be confirmed by a 60-39 margin.