5/1: Souter Goes Home

Political bloggers are buzzing over the news that SCOTUS Justice David Souter plans to retire at the end of the current court term. Most liberal bloggers want Pres. Obama to nominate a replacement who is as least as liberal as Souter. Meanwhile, conservative bloggers don't think it matters all that much whom Obama nominates to replace Souter, since Souter has been a consistent member of the Court's liberal bloc. Matt Lewis writes: "The good news for conservatives is that, because Souter was so liberal, his departure is unlikely to change the makeup of the court." However, righty bloggers still think the Senate confirmation process will be politically useful for the GOP, since it will provide them with "an opportunity to show Obama as no post-partisan moderate but as a liberal idealogue."

What else is happening in the blogosphere?

• Conservative bloggers (Erickson, Jackson) are angry that the NRSC is reportedly recruiting other candidates (such as Rep. Jim Gerlach) to run for Senate in PA because it views ex-Rep. Pat Toomey (R) as unelectable.
• Liberal bloggers (Bowers, BooMan, Sirota, Dayen, Greenwald) are angry and despondent after 12 Dem senators joined the 40 GOP senators in voting down the so-called "cramdown" amendment, which "would have given homeowners in financial trouble greater flexibility to renegotiate the terms of their mortgages."
• Liberal bloggers (Lewison, Benen, Moulitsas) think the new House GOP ad -- which uses images of the Pentagon burning on 9/11 -- is evidence of the GOP's desperation. Among conservative bloggers, Gateway Pundit thinks the ad is "terrific," but Allahpundit wonders "why [House Min. Leader John] Boehner and crew are hitting [Obama] on foreign policy instead of on the economy."

SOUTER: Take Advantage Of This Opportunity, Mr. President

The netroots want Obama to nominate a replacement for Souter who is as least as liberal as the departing Justice:

• Firedoglake's Attaturk: "[T]his is a case where you remember you have a large majority in the Senate and try to appoint someone like, well, David Souter -- okay maybe a little left of that."
• Oliver Willis: "President Obama should appoint an honest-to-goodness liberal to the Supreme Court. [...] We need a justice in the mold of Thurgood Marshall, and not someone squishy enough to be the 'swing' justice in the archetype the media loves so much. We need someone who is solid as a rock on civil rights, right to choice, limits on corporate power, and an overall progressive viewpoint on the Constitution, our laws, and the overall role the court has to play."
• Open Left's Chris Bowers: "It is quite possible both to appoint a more progressive Justice than Souder, and also to increase the lacking diversity on the court. Given the current balance, appointing a woman to fill Souder's position is a must, and appointing a minority woman might also be essential. Further, this might be a situation where having 60 seats in the Senate is actually useful, as any Democrats voting against President Obama's nominee from the right can easily be painted as the ultimate party backstabbers."
• MyDD's Jonathan Singer: "I think it is incumbent on President Obama not only to name a very capable nominee, but also a young one to combat the growing trend of GOP Presidents to appoint (relatively) young ardent conservatives to the Court. What's more...I think President Obama would be well served by looking beyond the list of jurists and academics by also considering sharp legal minds with legislative experience."

Think Progress' Matthew Yglesias doubts that Obama will nominate someone more liberal than Souter: "[I]t is worth emphasizing that neither David Souter nor any of the other current Supreme Court justices is really a liberal in the sense of a Thurgood Marshall or a William Douglas. Neither Souter nor [Ruth Bader] Ginsburg nor [Stephen] Breyer nor [John Paul] Stevens shows any real indication in exploring the social and economic justice issues implicated in the constitution's guarantees of equality. Consequently, one way in which the court could conceivably change as a result of Souter retiring would be his replacement by someone further left. [...] That said, Marshall-style robust judicial liberalism is something that many progressives no longer believe in and I don't see any indication in Obama's record of statements or personal associations that this is something he'd be interested in doing if he had the chance."

The Washington Monthly's Steve Benen thinks the GOP will throw a "temper tantrum" no matter who Obama nominates: "As far back as November, literally just a few days after the election, Arizona Sen. Jon Kyl (R), the second-ranking Republican in the Senate, threatened to filibuster any of Obama's Supreme Court nominees he considered insufficiently conservative. That was 11 weeks before Obama was even inaugurated. With this in mind, and given the GOP freak-out over uncontroversial cabinet nominees like [HHS Sec.] Kathleen Sebelius, a severe Republican temper tantrum is likely, no matter who the president nominates. If for no other reason, the minority party will see some value in working the base into a frenzy of hot-button cultural issues."

SOUTER II: Replacing A Liberal With A Liberal

Most conservative bloggers don't think it matters all that much whom Obama nominates to replace Souter, since Souter is already a member of the Court's liberal bloc:

• Michelle Malkin: "Now, we'll get an out liberal as opposed to a stealth one."
• Power Line's Paul Mirengoff: "Obama has unearthed, and nominated for high office, lawyers who probably are to the left of Souter. [IU law prof.] Dawn Johnsen and [Yale law prof.] Harold Koh come to mind. But it's not clear to me that either would vote much differently than Souter in cases that the Supreme Court actually hears."
• Townhall's Matt Lewis: "The good news for conservatives is that, because Souter was so liberal, his departure is unlikely to change the makeup of the court. It does, however, give Obama the opportunity to pick an even younger Justice who might be around for many years to come."
• Hot Air's Allahpundit: "The only 'good' news is that Souter was one of the most reliably liberal votes on the Court. Barry O would have to appoint an out-and-out socialist, practically, to tilt it further left."
• Townhall's Carol Platt Liebau: "[Souter] has been one of the most predictably left-wing (and intellectually undistinguished) votes on the Court (thank you, John Sununu). Sure, a new member may change the 'chemistry' of the Court, but it's not likely to change the outcome of many votes."

Liberal blogger Yglesias makes a similar argument: "[I'm] not sure I understand why the NYT thinks that replacing Souter 'could prove a test of Mr. Obama's plans for reshaping the nation's judiciary.' The swing vote on the court will still be Justice [Anthony] Kennedy no matter who Obama picks. Obama will pick someone, and Republicans will either throw an embarrassing and pointless tantrum before losing or else they'll calmly accept that it makes no sense for a small and unpopular minority to object to the replacement of one liberal by another."

Meanwhile, RedState's hogan wants Sen. Jeff Sessions (R-AL) to replace ex-Republican Arlen Specter (D-PA) as the Ranking Member on the Judiciary Cmte: "Jeff Sessions should be Republican Ranking Member on the Judiciary Committee. Not [UT Sen.] Orrin Hatch. Not [IA Sen.] Chuck Grassley. [...] To have Orrin Hatch or Chuck Grassley at the helm would be an unmitigated disaster. Each are cut from the same cloth -- that of the old guard Republicans in the Senate who have given us the train wreck that the Party has become. They would hire terrible staffers who would neither be the smartest lawyers nor actually conservative -- and, potentially, maintain a significant number of Specter's former staff. Jeff Sessions, on the other hand, would field a talented team who could educate America on just who America is getting in the next Supreme Court justice."

SOUTER III: Who's Obama Gonna Nominate?

Several conservative bloggers are offer their predictions on whom Obama might nominate to replace Souter:

• NRO's Kathryn Jean Lopez: "I have this nudging feeling they're not sending the ACLU lawyer to the Senate this time. That they'll play it semi-smart (it will still not be good news though) because they know they'll have at least another before long and probably another after that."
• Power Line's John Hinderaker: "At one time I would have expected Obama to exercise caution with his first Court appointment, but nothing we've seen in the last three months justifies that expectation. If Obama goes hard left, we could be in for the most interesting Congressional action of his young administration."
• AmSpec Blog's Doug Bandow: "A liberal nomination is inevitable. About all conservatives can do is push hard against any truly radical nominee."
• Hot Air's Ed Morrissey: "Based on Obama's appointments thus far, expect a mediocre candidate that will be just middle enough to get a few Republicans on board. Don't expect it to go quietly, but the Republicans probably won't stage any extraordinary action to block it, unless something arises like tax problems or other issues that rise to incompetence or corruption. That's actually the way presidential appointments should be handled, as elections have consequences. After the dust settles, the court will be in exactly the same position as it is now, but in the meantime the GOP will have had an opportunity to show Obama as no post-partisan moderate but as a liberal idealogue. Elections do have consequences -- and so do appointments."

Malkin suspects that the three leading candidate to replace Souter are Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood. Of these three candidates, The Cato Institute's Ilya Shapiro prefers Wood: "Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation. Sotomayor -- because she is Hispanic and despite a mixed judicial record -- was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race. That leaves Wood, a renowned authority on antitrust, international trade, and federal civil procedure, whose age (58) suggests that this is likely the last vacancy for which she will be considered. Wood offers a seriousness of purpose and no ideological ax to grind, and is thus the best nominee supporters of constitutionalism and the rule of law can hope for at this time. (Full disclosure: I took two classes from Judge Wood in law school.)"

PA SEN: Why Won't The NRSC Support Toomey?

Conservative bloggers are angry that the NRSC is reportedly recruiting other candidates (such as Gerlach) to run for Senate because it views Toomey as unelectable:

• RedState's Erick Erickson: "Gerlach could hurt Toomey in the primary, but he cannot win the primary. Call your Pennsylvania GOP representatives and demand they unite behind Toomey."
• The New Ledger's Brad Jackson: "The reluctance of the NRSC to get on board Toomey's campaign, especially in the wake of Specter's defection, is troubling. What kind of Republican party does the GOP leadership in Washington want to have?"

Meanwhile, righty bloggers are pleased that Specter voted against the bankruptcy reform amendment known as "cramdown" (which Obama supported). On the other side of the blogosphere, Bowers is annoyed by Specter's vote, while Todd Beeton continues to urge Rep. Joe Sestak (D-PA) to challenge Specter in the Dem primary.

THOUGHT OF THE DAY: Less Bipartisanship = Progress

Daily Kos' Markos Moulitsas thinks Obama is making progress:

"So Obama's budget passed yesterday with zero Republican votes. And you know what was the best part? The Administration didn't give a damn and the media didn't give a damn. All that Obama talk about 'bipartisanship' has ceased, and as a result, the media is no longer claiming Obama is a loser because he failed to garner Republican support.

Obama is now demanding to be judged on legislative results, not process ones, and the media is playing along. The only reason it ever gave a damn about the unified Republican front against Obama's stimulus and budget bills was because Obama made bipartisan cooperation a marker for success. When he failed at that, the media dutifully reported on that failure.

But what matters in the end is legislation, not roll calls. And with Obama's team no longer forced to water down legislation in a fruitless quest for irrelevant Republican votes, we'll see much better policy in the end. I call that progress."

LEST WE FORGET: Here's Your Opportunity

Reason's Dave Weigel reacts to the news that Souter is retiring:

"This would be a good time for ambitious liberal jurists to pay their motherfucking taxes."