Sound and fury

Whenever a seat opens up on the U.S. Supreme Court, conventional wisdom decrees that the fight to fill it will be long and bloody. The interest groups lock and load, the culture warriors get ready to rumble, and yet, despite all the ritual sound and fury, high court nominees usually ascend with scant damage to the body politic. Roberts, Alito, Breyer, Ginsburg - the list goes on. There hasn't been an apocalyptic bloodbath since the 1991 miniseries starring Clarence Thomas, Long Dong Silver, alleged sexual harassment, and allegations about pubic hair on a can of Coke.

Now we have the departure of John Paul Stevens, and the usual talk of a potential donnybrook over the credentials of the nominee soon to be named by President Obama. But the mood this weekend was actually quite subdued. Senate Republicans spoke in the abstract about reserving the right to filibuster, and leader Mitch McConnell vowed that his colleagues would "make a sustained and vigorous case for judicial restraint." In today's toxic atmosphere, that kind of talk is tantamount to a bipartisan kiss. Even McConnell deputy John Kyl, the Senate GOP whip, said on ABC News yesterday that the top names being floated by the Obama camp "are all nominally qualified."

I sense little appetite - on either side - for a steel-cage contest over Stevens' replacement. The Republicans do need to stoke their conservative base, of course, which is why McConnell said what he said, and why Senator Lamar Alexander threatened a filibuster if Obama chooses "someone from the fringe," but that rhetoric is de rigueur. More importantly, a protracted court nomination fight would not necessarily serve the party's short-term political interests - which is precisely why the Senate Republicans, by contemporary standards, seem almost quiescent.

Republicans are busy wooing independent voters for the November election, and don't want to to risk turning off those voters by raising the banner of No - and making it appear that they are hell bent on obstructionism even before Obama's nominee is actually named. Broadly speaking, independents are fierce critics of Washington gridlock, and they might not relish seeing the Republicans provoke a fight to the death over a court nominee at a time when the Senate is supposed to be focusing on crucial issues such as energy, jobs, climate change, and financial regulation. Senate Republicans seem well aware of this potential pitfall - as well as the risk of alienating the rank-and-file GOP moderates who detest the idea of perpetually refighting the culture war.

Nor is it in Obama's self interest to choose a nominee who ratchets up right-wing hysteria - for instance, somebody like federal appeals judge Diane Wood (a rumored short-lister), who has written nice things about abortion rights and same-sex marriage. After expending considerable political capital on the health reform fight, Obama can ill afford to go to the mat for a controversial court pick; he'd presumably prefer that the semi-dysfunctional Senate focus this spring and summer on the aforementioned legislative issues - especially the enactment of new rules that would tame the Wall Street buccaneers and bar them from giving capitalism a bad name.

Granted, it's likely that, no matter who Obama chooses to nominate, the Senate Republicans will still paint that person as a "judicial activist" who intends to "legislative from the bench" and "apply feelings instead of applying the law." (All those stock phrases were trotted out over the weekend.) And folks like me will be compelled to point out that the Senate Republicans fell predictably mute back in January, when John Roberts and four other GOP appointees engaged in judicial activism, and legislated from the bench, when they OK'd unlimited corporate political spending by ignoring both judicial precedent (high court rulings in 1990 and 2003) and legislation enacted by the people's representatives.

And when John Kyl warns again (as he did yesterday) that Obama should not choose somebody who would be "coming to the bench with an ideological position," the obvious retort will be: Um, hello? Hasn't Kyl just described Reagan appointee Antonin Scalia?

But that's just standard Washington fare, the capital's version of kabuki theatre. I sense that both sides, wearied already, have enough on their plates without putting the court on the menu. If you're still up for a summer nomination meltdown, the Clarence Thomas imbroglio would instead suffice as perfect beach reading. Admittedly, I don't recall whether the pubic-hair-on-Coke-can mystery was ever solved. But, then again, the mystery of why Justice Thomas has not asked a single question during oral argument in any of the past four years (really!) is surely far more intriguing.