5/26/2009

Another Thought Experiment

Today PBO nominated federal appeals judge Sonia Sotomayor to fill Justice David Souter's seat on the Supreme Court. CNN posts a short item about the Republicans' strategy for her confirmation hearing before the Senate Judiciary Committee, described as "tough, but fair." Let's pretend for a moment there are no hidden politics in the Republican strategy. Let's pretend they sincerely hope to lead by example so one day confirmation hearings can be thoughtful examinations of a nominee's experience, intellect and professional accomplishment instead of the identity politics/code word/question avoidance/score settlers they've become since at least, and including, the Bork nomination.

In tit-for-tat game theory, deescalation in rhetoric and tactics by Republicans ought to be met, over time, with proportionate deescalation by Democrats. But in reality, Supreme Court nominations are a combination of domination and chicken. In other words, hard core activists will insist that any altruism shown by the other side be pocketed, not reciprocated.

If you were a fervent believer in using the Supreme Court to expand privacy rights or gun ownership rights and the other side gave your preferred nominee an easy pass, you're incented to interpret that as weakness and push harder for your cause. There's no easy way to test this, but I suspect Senate Republicans' attempt, sincere or not (and likely not), to lead by example will prove fruitless the next time a Republican president makes a Supreme Court nomination (I also believe if the Senate makeup was the exact converse, Republicans would use this nomination as payback for Bork).

They're not having discussions in the White House's Supreme Court war room about how to bring statesmanship back to hearings. They are having meetings about how to convert current advantages into permanent ones.

Just like Kim Jong-Il.

1 comment:

Johnny Keynes said...

Any hope that the Dems would respond in-kind should be thrown out the window. Recall that many of Clinton's nominees were given a free pass but when Bush took office, Dems fought tooth-and-nail to deny any conservative access to the courts. No, the Dems already have shown themselves to be unwilling to have a rational discussion on the issues.

That said, the GOP needs to save its ammunition for battles it can win. This is not one of those. Better to make some points that make Sotomayor look a little out of the mainstream and them move on to issues that they have an ability to gain Blue Dog support on.