Amid criticisms of the judicial nominations process, Professor David Fontana of George Washington University published "Going Robe: Obama's judicial appointment strategy isn't working. Here's a better one." in The New Republic today.
If Republicans are going to obstruct even moderate nominees, and if Senate Democrats are sometimes going to have to break filibusters to stop them, then why keep appointing generally moderate judges meant to appeal to Republicans? Why not try to put your own philosophical stamp on the courts?
The politics of placing liberals on the bench aren't nearly as daunting as the administration seems to think. Democrats have enough votes to break a filibuster, as they ultimately did for Hamilton--and, unlike with health care reform, centrists like Joe Lieberman and Ben Nelson don't seem to be wavering on judicial nominations. Beyond the 60 senators in the Democratic caucus, there appear to be some Republicans who will vote to end a filibuster on principle, even if they won't vote for the nominee. (The Hamilton filibuster was broken by 70 senators, including some Republicans who did not subsequently vote to confirm.)
More importantly, outside the Senate, Obama would have public opinion on his side. Research conducted recently by Stephen Ansolabehere of MIT and Nathaniel Persily and Jamal Greene of Columbia Law School found that 58 percent of Americans thought it very or somewhat important for the Supreme Court to exhibit "empathy" in judging. A majority also supported interpreting the Constitution according to "current realities" rather than according to the "original intentions" of the Framers. These findings are largely consistent with a series of polls conducted by Quinnipiac University over the years.
The public, in other words, would be perfectly content to watch Obama put his stamp on the judiciary. If only he weren't so fixated on wooing Republican senators who seem determined not to be wooed.