In 2009, when President Obama was close to the height of his popularity and political capital, only nine Republican senators voted to confirm Justice Sotomayor: Lamar Alexander, Kit Bond, Susan Collins, Lindsay Graham, Judd Gregg, Dick Lugar, Mel Martinez, Olympia Snowe, and George Voinovich. Of these four (Bond, Gregg, Martinez and Voinovich) are now retired. One (Snowe) recently announced her voluntary retirement. And one, Dick Lugar of Indiana, was just involuntarily retired by Tea Party challenger Richard Mourdock.
Lugar is an Indiana institution. He ran virtually unopposed during his last reelection race, and won by more than 30 points the last time a major party candidate tried to challenge him. Had he won yesterday’s primary, he would have been the prohibitive favorite in November (Mourdock, by contrast, could lose in November as easily as he could win). Nor was Lugar particularly moderate. Among other things, Lugar voted for Rep. Paul Ryan’s (R-WI) infamous plan to phase out Medicare.
In the age of the Tea Party, however, even the most occasional departures from conservative orthodoxy are enough for the GOP electorate to declare a public official an apostate. Mourdock made Lugar’s votes for Justices Sotomayor and Kagan, in addition to a handful of other breaks with America’s far right, the focus of his campaign — and that was enough to defeat a 36 year Senate veteran. In light of this incident, it is unlikely that any of the few remaining Republicans who backed an Obama Supreme Court appointee will be willing to risk their careers by doing the same again.
Lest there be any doubt, there is probably no one President Obama could nominate for the high Court who would satisfy the newly radicalized Republican Party. Mourdock, for his part, recently promised to oppose any nominee who did not fit his personal constitutional philosophy — and he twice cited failed Supreme Court nominee and Romney legal advisor Robert Bork as his model nominee. As recently as last October, Bork mocked the very idea that women sometimes face discrimination as “silly,” and he infamously described the federal ban on whites-only lunch counters as “unsurpassed ugliness” early in his career. Obama would never, ever nominate such a man to the Supreme Court.
In other words, if President Obama has the opportunity to nominate a new justice during a second presidential term, it is tough to imagine any set of circumstances that allows that nominee to receive the 60 votes necessary to break a filibuster. The parties are too far apart. The Republicans are too eager to obstruct, and the handful of GOPers with a history of bipartisanship will be too spooked to reach across the aisle. America could go years with one or more Supreme Court seats vacant.
There could be, however, a way out of this trap. In his most recent State of the Union Address, President Obama called on the Senate to “pass a simple rule that all judicial and public servant nominations receive an up or down vote within 90 days” — effectively eliminating the filibuster for Senate-confirmed jobs. Moreover, when the newly-elected Senate reconvenes next January, it opens a very brief window where Obama’s proposed rule could be implemented with just 51 votes.
Should the Democrats manage to hold the Senate next year, an outcome that is much more likely than appeared possible just one year ago, they no longer have the option to maintain the status quo. Keeping the current rules means stripping Obama of his power to nominate Supreme Court justices, and potentially turning the Court over to Mourdock’s fellow ideologues for years to come.
Update
Jonathan Chait expresses similar concerns here.
