Monday, April 12, 2010


Republicans seem to be signaling that they really don't want to filibuster President Obama's next Supreme Court pick. The New York Daily News notes the remarks of Senator Jeff Sessions on TV yesterday:

... he said he hopes "we do not do that" to block President Obama's as-yet unnamed nominee for the high court. Only under "extraordinary circumstances" would it be appropriate for the GOP to scuttle Obama's second pick for the high court, Sessions told NBC's "Meet The Press."

Former senator and president-wannabe Rick Santorum expressed disdain for judicial filibusters, even by his own side, in a chat with The Washington Post's David Wiegel over the weekend. And Time's Mark Halperin, who is presumably at least somewhat plugged into GOP thinking, argues that there probably won't be a huge fight because the usual subject of High Court arguments, abortion, isn't what's energizing the GOP base right now.

But that might mean the Republicans are just holding their fire for now.

They may not want to put a show of resistance yet because they want to stay on message -- and the message is health care. Republicans have clearly put all their chips on health care for November. It's pretty much all they want to talk about. No potential nominee has offered an opinion on whether the bill is constitutional, of course. So Republicans may want it to seem as if they're being fair and waiting to judge the nominee -- but what they're really planing is to make the entire hearing a relitigation of the health care bill, possibly with a filibuster to follow if they think they can spin the nominee's answers in a way that will be a winner for them.

There are already hints that the hearings will be about heath care. As Talking Points Memo noted on Friday, one sentence in a statement by Senator Sessions implied that health care would be a litmus test:

There is much at stake, as the court's interpretation of the Constitution in the coming years could significantly affect the implementation of domestic polices approved by the president and Congress over the past year.

Today, a column by Michael Barone suggests the same thing:

The retirement of Justice John Paul Stevens means that in coming months we'll have another hearing on a Supreme Court nominee. But it's not likely to be the sort of hearing we got used to in the two decades after Edward Kennedy declared war on Robert Bork in 1987.

Nomination fights in those years centered on the issue of abortion.

... the political issues that now raise constitutional questions tend to favor Republicans.

Those are issues raised by the big government programs of the Obama administration and Democratic congressional leaders, in particular by the health care legislation they jammed through Congress despite huge public opposition last month.

One is the constitutionality of the health care bill's mandate to purchase private health insurance....

Some 14 state attorneys general are trying to raise the issue in court, and pending state laws outlawing mandates could raise the question, as well. Those state laws are obviously invalid under the supremacy clause unless the federal law is unconstitutional. Is it?

I would expect an Obama nominee to decline to answer. But Republicans may not take such a response as meekly as they did when Ginsberg declined to answer dozens of questions back in 1993....

I think Republican senators are just waiting for the nominee's answers on this subject -- and then they're going to go nuts. But they can't go nuts in advance, because they haven't heard the answers that are going to provoke their histrionics ... yet.


UPDATE TUESDAY: Now here's GOP congressman Mike Pence signaling that health care is going to be an issue in the hearings:

On MSNBC, Pence made similar signals, stressing the importance of a thorough vetting because "you've got issues that bear upon our fundamental freedoms that are before the Court."

He went on to list the "more than a dozen attorney generals that are going to take the whole issue of an individual mandate to buy insurance to the Supreme Court."

Pence added: "The Court really is making decisions more and more and more that directly effect the freedom, the economic freedom, and the personal freedom of the American people."

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