Some prolifers have made the point, see this is why McCain would have been better than Obama. Well, of course only God can really know what would have been. But I point out to you that had McCain won, and he was faced with a heavy Democratic majority in the Senate, just who do you suppose he would be looking to nominate right now? In that alternate reality, I think we'd be very lucky to get someone as good as Justice Kennedy--i.e., someone who votes right on some things, but who, yes, upheld the Partial Birth Abortion ban, but who voted to uphold Roe in 1993.
You may say, oh, but McCain said he'd offer better nominees. Yes, he said that; but you're kidding yourself if you think McCain--in this present situation, with Afghanistan, Pakistan, Iran, the economy tanking, etc.--would go ahead with a nominee who would face long odds of confirmation unless McCain made a huge fight of it. Also: while I believe that that would be worth doing, even if the nominee got defeated, I think it's foolish to assume McCain and his folks, in the White House, would have beleved that.
Rather, I think President McCain would want to get someone who would be "acceptable" to the right, but also who would be confirmed and he would have a win and he could move onto other pressing matters. And his folks would surely go out and work the circuit, ahead of time, to convince the right that the pending nominee would really be better than it might seem, and anyway, the "best we can get in this situation," andanyway, everyone needs to be a team player.
If that sounds vaguely familiar, it is pretty much what John Sununu, chief of staff for the first President Bush, said and did when the White House chose David Souter. The situation was similar, except the Democrats did not, I believe, have as large a majority in the Senate as now--something a McCain White House would cite endlessly to explain why they didn't offer anyone better: "get us a GOP Senate in 2010, and then we'll put up better nominees.
As you may have noticed, the chatter--while everyone waits to see who the President will pick--has included, "will he go mainstream or go for an ideologue," or some variation. Some are talking about this as if it matters. I think it doesn't much matter; or, rather, it matters, but there are benefits either way so don't worry about it.
Start with the supposed worst-case: he picks some really wild, out-there leftie, but who also has all the right ethnic, gender and other "qualifications" that make the Senate and the media swoon.
Yes, they'll all gush over the "youthful" Hispanic, female judge, who grew up in the South Bronx amid gunfire every day--thus she suffered the injury that leaves her in a wheelchair to this day, (cue boos to the gun lobby and those who oppose embryonic stem-cell research), and went to Harvard, Yale and Oxford thanks to Pell grants and loans, graduating summa cum laude, and who--when she isn't empathically dispensing justice for all and sundry, lives with her gay partner--oh, did we mention she's gay?--in an ecologically sustainable ashram in whatever state is deemed most valuable to get or keep in the 2012 election. And then she'll come before the cameras, and she'll be beautiful, brilliant, and funny, and the Republicans will all fall at her feet as though dead.
Well..maybe. Rather, I think it is more likely that, apart from the preferred narrative of the White House and the big media (which I just gave you), is that it won't be long before someone finds all the whacko things she ruled in favor of, and it won't be much longer before someone--either inside the Senate or outside--makes a big stink of it and a political fight.
"But she'll still get confirmed!" Probably; maybe; but suppose she does? Do you really think this new justice is going to take control of the Court because the New York Times thinks she's the new Oliver Wendell Holmes? This supposed nominee would be to the left of everyone now on the Court--she's going to win over Kennedy, and keep Breyer and Stevens, for every flaky thing she wants? Sorry, it's a bit far-fetched. These folks on the High Court did not arrive where they are so they can simply be empty receptacles for someone else's "brilliance." They will offer their own "brilliance," with which they are, of course, intimately familiar. Haven't you ever noticed how frequently the Court's decisions come down in fragmented decisions--not just a majority and minority view, but partial assents and dissents?
Meanwhile, what do you suppose will be the impact on the political fortunes of those Senators, in competitive states, in their next re-election, of a vote to confirm this justice? Every whacko thing decision and vote, before and after, will be tied around their necks. And that of President Obama.
Maybe the White House and the Senate majority are fine with that; but I suspect cooler heads will prevail.
Perhaps you say, no, the worst-case scenario is not this, but a "stealth" candidate. You mean another Breyer or Souter? My point is, (a) these guys are occasionally reasonable and (b), why is a new Souter for an old Souter such a terrible peril? Who knows? The new "stealth" candidate may occasionally be good on something, a marginal improvement.
The choice for the White House remains: either pick someone "reasonable" and "moderate" and go with a quicker confirmation battle--that means status quo--or else go for the ideological home-run, go with a "game-changer," and then we have valuable, useful political fight that will do three things: (a) mobilize prolifers and other good folks to get involved and make a difference; (b) create problems for any Senators who vote for such a polarizing figure and (c) bring front-and-center to national attention the problem of judges who invent law, rather than interpret it.
And, I maintain, even if such a Justice Granola gets confirmed, it still won't change the outcomes of the Supreme Court much, if at all. Because if Justice Kennedy is really that wobbly, then we never "had" him to begin with, and this doesn't really change anything. It's like saying, the problem in the crumbling door isn't the termites, but that you pushed against it.
Oh, and one other benefit, which I've mentioned before: all the time and energy spent on confirming the left's essential fourth vote on the Court is time and energy not spent on a host of other things President Obama, and his allies in Congress, want: government takeover of health care, carbon taxes, Big Labor power grabs, and so forth. And that's true even with a "consensus" choice, because it will still take some time; and even more true with a extremist nominee. Since I believe we are better off to the extent Congress is busy with trivialities, a huge fight over a Supreme Court justice could be a really good diversion for the next six months or so.