Scott Lemieux in The American Prospect has a particularly good grasp on how the nomination process to replace Justice Stevens should go. It’s rather sad that even in a Democraticly-controlled Congress and with a Democrat in the White House, we’re treating all executive nominations as if this was 1997 and the Republicans were in power. But this is not the time to settle. Aim high, and either get it all or get most of it:
It might be objected at this point that a nominee like [Pamela] Karlan or [Harold] Koh might compel a Republican filibuster … In the (probably unlikely) possibility that a filibuster of a nominee holds, the result would be the eventual confirmation of a more moderate nominee. If Obama preemptively nominates a moderate nominee, the result would be … exactly the same.
[With] Republican obstructionism in the Senate virtually maxed out, there’s no reason to believe that a Republican filibuster would incur any net political cost. If anything, it would provide ammunition for a narrative painting the Republicans as the “Party of No” while providing a venue for defending liberal constitutional values. And finally, the filibustering of a Supreme Court nominee for the first time since 1968 (and second total) would escalate the cycle that is likely to lead to the elimination or substantial modification of the filibuster rule — something that would be a massive victory for democracy.
We’ve tried the bipartisan cooperative route, and it was pretty clear from the start that Republicans had no interest in that (and finally, Axelrod is coming around). Time to stop trying; the actual goals (say no) of the Republican Party are completely clear at this point. “If we win, we win. If we lose, we still win.”