The writing is on the wall. As any number of commentators have suggested, it’s pretty clear that no matter whom the President nominates for the next Supreme Court vacancy, the Republicans and their allies on the far right are going to fight. Indeed, as Jeff Toobin points out in his excellent article in The New Yorker, even the President’s mainstream nomination of David Hamilton for a seat on the Seventh Circuit Court of Appeals – his very first judicial nominee – continues to languish because of unfounded attacks from the Right. As one White House official is quoted by Toobin: ‘If they are going to stop David Hamilton, then who won’t they stop.” 

As suggested in Toobin’s article, the Republicans claim it’s payback for the President’s votes against Chief Justice Roberts and Justice Alito.  But as history is showing us, then-Senator Obama’s votes were the correct ones. The Roberts court is Exhibit A in far right judicial activism – not the balls and strikes umpiring we were promised by the Chief Justice.  In any event as Republican Senator Thune makes clear in yesterday’s Roll Call article, the only way for the President to avoid a fight is for him to nominate a conservative – anything else would meet significant resistance.

So the cards are on the table. If we’re going to have a fight, then let’s think boldly about the kind of Justice we need on the Court. And that means a Justice who understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It means a Justice who understands that the law and the Constitution protect important privacy rights. It means a Justice who appreciates that the law and the Constitution affect the realities of Americans’ everyday lives.  It means a Justice who respects the core constitutional values of justice and equal opportunity for all.  If we’re going to have a fight, let’s make it one worth having – let’s make it a fight for core constitutional values.