Letter from a Liberal: Barack Obama should appoint a consensus moderate to replace Justice Scalia

A battle for the soul of the Supreme Court is in full swing — and never has it been more important. The future of the American social, legislative, corporate, environmental, and election landscape is at stake.

With urbanization and gerrymandering (among other demographic trends) resulting in more polarization than ever in federal government, we are seeing the gridlock that Krehbiel predicted long ago with his Pivotal Politics Model: the underlying preferences and electorates behind each individual representative are too polar for there to be enough support for compromise or moderate behavior (this is both a mathematical and qualitative point).

But…what if we “resist the temptation to fall back on the same partisanship and pettiness and immaturity that has poisoned our politics for so long.” I agree with this, but I didn’t write it. That line was delivered by a President-elect of 1 hour in Chicago’s Grant Park on November 4th, 2008.

The same man who said in his first Inauguration speech that “…on this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.”

The last seven years have been tough for those of us who were waiting on the politics of hope. The ship never came, and I fear the dock has been shut down. The right accuses Obama of not being a real American, of not espousing American values, of going around Congress, of overstepping Constitutional authority (see their immediate press releases arguing Obama should not even nominate someone). The left accuses the right of being obstructionist, of being racist, giving in to dog-whistle politics, and inviting the demons of their party into the Establishment (with no plans on how to make them leave). This President is heralded by the left as a martyr for withstanding unprecedented subversion and obstructionism from the right while pushing progress, and denounced by the right for the very same tactics which they view as all-too-validating of their suspicions.

It’s true, the Republicans have invited in demons of their party responding to dog-whistle race and immigrant politics and now have to come to terms with power players that aren’t Establishment. RIP Jeb Bush, John Boehner, Eric Cantor. But that is the situation we have now. There are demons in the Democratic Party as well. We can lament about it, or we can start the process of fixing the new things broken with our politics and then get to the business of fixing the other stuff.

There are logical, political, and rational reasons for Obama to choose a consensus moderate as well. It maximizes his chances of actually getting a nominee confirmed, further cementing his legacy. Even if the Court gets another Kennedy, this is still a big liberal win. With 2 Kennedys, the left wing of the Court only needs one on its side to win 5–4; the right wing needs both. This gives the Left twice as many chances of winning 5–4 cases (those generally tilted 2/3rds to the conservative majority, and that is about the rate at which Kennedy sided with conservatives).

A moderate gives center-right Republicans political cover to stand up to Tea Partiers, and they may jump on a consensus choice now for fear of having HRC nominate one with a Democratic Senate next year (a hedge for both sides…compromise, anyone?). Liberal advancement (labeled overreach) from the court can face backlash and actually set back liberal progress — being careful may be a better, second-best approach, for the liberal social and political agenda.

Obama has a chance to round out a presidency that promised hope and change with actual hope and money-where-your-mouth-is change. There is certainly a non-trivial chance the Republicans will block any nominee, regardless of political positions, just to deny Obama a win — but he should try. Try to rebuild some trust with Senate Republicans. He can nominate a truly moderate, consensus choice. Not someone that is liberal-in-waiting-but-publicly-and-on-the-record-moderate that Democrats want to use to shame Republicans. It would be rebuke to the idea that he intended to be divisive and wanted to leave a land burned through with partisan lines. A candidate who ran against McCain’s “Country First” theme can actually co-opt that with a symbolic and consequential long-lasting act.

What better counter-factual to the conservatives that echo Rubio’s robotic refrain that “Obama knows exactly what he’s doing…undertaking a systematic effort to change America” than reality?

I know all the reasons Obama should try for a liberal. A permanent 5–4 liberal majority is tantalizing to the left. Why compromise when Democrats could have it now or next year as long Democrats turn out this fall (which is more likely if the seat is left vacant by Republicans, the left argues)? The upside case and rewards are there for trying for a liberal, but a young man once said after winning one of the most historic elections in the pantheon of American history: “while the Democratic Party has won a great victory tonight, we do so with a measure of humility and determination to heal the divides that have held back our progress.” There are some things that are more important than a victory for the left.

I would love nothing more than Obama installing a liberal lion on the court for the next three decades, but I fear for my country as well. I am reminded of a young Senator from Illinois who, in New Hampshire in 2008, after losing the New Hampshire Primary to Hillary Clinton, argued that Americans are “Democrats, independents and Republicans who are tired of the division and distraction that has clouded Washington, who know that we can disagree without being disagreeable...”, and that is more true today than it was 8 years ago.

Obama, in his last State of the Union, said his biggest regret was “that the rancor and suspicion between the parties has gotten worse instead of better.” He will have to sacrifice his own personal preferences and party agenda to try and shine a ray of sun on the rusting planks of his “politics of hope”, but this might be his best, last, opportunity to show us all his words were not empty.