When news broke last week that Supreme Court Justice David Souter was set to retire, much media attention seemed to focus immediately on two questions: a) who would Obama nominate to replace him and b) what would be the political consequences of any given selection (otherwise known as “will Obama get his man, or woman, through, and if so, how cleanly”). The first question will be answered in due course by Obama himself (or maybe a clever reporter capable of prying it out of Rahm Emanuel). The second question seems like a relatively simple one to answer: As it stands, there are 59 Senators who caucus as Democrats in the Senate (should Al Franken be seated, the Democrats will have a bulletproof 60 votes), and it is basically inconceivable that even in fairly extreme, and dire, circumstances any of them would vote against Obama on something like a judicial appointment. That automatically means that whoever Obama nominates will be approved by the Senate by a bigger margin than Justice Alito and Justice Thomas. So, unless Obama’s nominee is discovered to have had major league tax problems (like Tim Geithner), or worse, my suspicion is that he will be able to appoint whoever he wants and guarantee himself a result that will be hard to describe as anything other than a clean “win.” The more interesting question, therefore, at least in my mind, is what the Souter retirement, and Obama getting the opportunity to nominate a new Supreme Court Justice so early on means for Republicans and conservatives—a question that I think is arguably more complicated, but one that White House advisers will be considering since its answer can potentially guide Democrats, and...
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