David Broder Does The Judiciary
February 8, 2009, 4:39 pm
Filed under: Uncategorized | Tags: ,

Remember how President Obama watered down his stimulus package and filled it up with tax cuts in order to please House Republicans?  Remember how exactly zero of those House Republicans voted for the bill?  Yeah, that was awesome.

So I’m a little skeptical of Richmond Law Professor Carl Tobias’ Broderesque proposal for how the President should choose judges:

Now, it has fallen to President Obama to fill the North Carolina opening. In so doing, President Obama should take a fresh approach, in several ways:

First, Obama should embrace bipartisanship and reject the counterproductive dynamics that have troubled the selection process. In particular, the President should solicit guidance on candidates from North Carolina’s Senate members, Kay Hagan (D) and Robert Burr (R), prior to formal nomination. The senators have privately discussed the empty judgeship and have agreed that the deadlock must end. Both have promised to cooperate with the new President and each other. Burr expressed hope that there would be a fair process for analyzing candidates and described judicial selection as a field in which Democrats can reach across the aisle. A nominee acceptable to both Hagan and Burr will enjoy a powerful advantage. . . .

Fortunately, President Obama has vowed to practice bipartisanship. He can honor this pledge by swiftly adopting efficacious practices and, in the near future, by choosing an excellent replacement for Judge Phillips — a person whose selection both parties can support.

There’s no point in being ornery just for the sake of being ornery, so President Obama certainly should discuss his North Carolina nominees with Senator Burr, and seek Burr’s advice on whether any potential nominees exist who 1) are smart enough, 2) are not repulsive to Republicans and 3) hold values consistent with the progressive agenda President Obama was elected to advance.  As the stimulus debate shows, however, #2 and #3 may be incompatable with each other.  Senator Burr may try to veto any nominee who is not a proud member of the Federalist Society.

To the extent Republicans are willing to negotiate in good faith, there’s no reason to exclude them from discussions out of sheer pique.  But they lost the election.  Badly.  If people like Senator Burr lose sight of this fact, President Obama needs to appoint judges who’ll remind Burr that we live in a democracy.


3 Comments so far
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[…] 8, 2009, 7:01 pm Filed under: Uncategorized | Tags: broderism, judicial noms Following up on my last post, the L.A. Times advises President Obama to show his “bipartisanship” by following the […]

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What would count as “negotiating in good faith”? Are we talking like the much-cited example of some Republican (I think it was Hatch) suggesting Ruth Bader Ginsburg to Bill Clinton rather than whoever it was Clinton was first considering? As Dahlia Lithwick pointed out, even Ginsburg, hated as she is among conservatives, is hardly a “liberal lion” like Marshall or Brennan. So….what sort of negotiations SHOULD Republicans engage in (from our decidedly Democratic point of view).

Comment by Ben

I don’t think it would be unreasonable for Burr to suggest a list of potential nominees who are moderate liberals in the vein of Ruth Bader Ginsburg. What I fear, however, is that GOP senators who are consulted on judicial noms will behave just like Republican lawmakers behaved during the stimulus debate—they will demand that President Obama do what George Bush would have done, and threaten a filibuster if he does otherwise.

If this happens, the President needs to call their bluff.

Comment by Ian

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