There is good reason to believe that one or more Supreme Court justices will step down in 2010. The rumors have swirled for some time that Justice Stevens will retire. Moreover, it seems increasingly likely that the Democrats may lose Senate seats, dropping their ranks below the filibuster-proof 60. That makes post-2010 Supreme Court confirmation fights a bit trickier and reduces the chances of a hard-core liberal activist making it to the Court after the 2010 elections. So if the liberal/activist justices are thinking of retirement in the next few years, 2010 is the time to do it.
Obama made a political calculation with Sonia Sotomayor that the benefits of a “wise Latina” outweighed the long term benefits of having a top-flight liberal intellectual on the Court, who might go toe-to-toe with the conservative heavyweights (and have the ability from time to time to corral the mercurial Justice Anthony Kennedy). That calculation made some sense if one supposes Sotomayor would not be Obama’s only appointment.
In some respects the Sotomayor confirmation hearing was a boon to conservative jurists and scholars. As Ed Whelan notes, despite Obama’s attempt to elevate “empathy,” and a filibuster-proof Democratic majority, judicial activists came away disappointed “as Sotomayor, in close consultation with the White House, tried to disguise herself as a judicial conservative. ‘The task of a judge is not to make law, it is to apply the law,’ she averred. Judges are ‘like umpires,’ she said. She pretended to walk away from her support for freewheeling resort to foreign and international legal materials. And, perhaps most strikingly, she emphatically repudiated Obama’s own empathy standard.” What’s more, liberals grudgingly figured out that Jeffrey Rosen was right — they could have come up with a better nominee.
In 2010 Obama might go for a top-flight nominee with impeccable credentials and a willingness to be candid about his or her judicial philosophy. But the temptation is great, especially as Obama’s ratings are sinking and his Democratic colleagues are floundering in the polls, to once again play the political angle. Recall that with this crowd everything is political — the Afghanistan war strategy, the census, and especially the Justice Department. So the political consiglieres may well be pushing for a minority-group nominee (haven’t Asians been drifting toward the Republican camp?) or a charismatic figure around whom to rally as they seek to paint the Republicans as the grouchy, bad guys. Find someone who will be good on TV! Play the gender/ethnicity/race card! (Besides, if the Obami are confident in securing a second term, what’s the rush? They’ll have many more years to put boringly competent and intellectually precise people on the Court.)
So it may well be that once again an unexceptional but dependable liberal will get the nod. But we can, I think, be assured of one thing: David Broder notwithstanding, Janet Napolitano will be off the short list.