Unconstrained by the demands of national security, with this Supreme Court pick Obama finally has the chance to be bold. He has the opportunity to name someone who will deliver a much-needed defibrillating to the intellectually exhausted left wing of the court. Everyone—including me—has been expecting Obama to name a respectable incrementalist to slide into Souter's respectable incrementalist shoes. But I am more and more apt to think he might just shock us all in the coming days with someone ready to take up the mantle of Thurgood Marshall and William Brennan.
First, he needn't fear the filibuster. Moreover, it's clear that a moderate, minimalist technocrat will face the same rump-blistering confirmation as a liberal bomb-thrower. (The Judicial Confirmation Network has launched a series of ads trashing the moderate Solicitor General Elena Kagan, the more outspoken Judge Diane Pamela Wood of the Seventh Circuit Court of Appeals and the somewhat more outspoken Sonia Sotomayor of the Second Circuit in about equal measure.) The game of destroying Obama's nominee has little to do with the nominee. Whoever he or she might be, the actual name won't matter in the race to tarnish him or her as a hysterical, abortion-loving activist.
Indeed. Whoever he nominates is going to be excoriated by rightwingnutters. Why not go bold?