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SCOTUS Prediction: Napolitano

I think the pick will be former Arizona Governor Napolitano, and the Arizona illegal immigrant law is the tie-breaker, if any were needed.  Just the political angle:  The nomination will show the right at its worst--its sometimes irrational screeds on the serious problem of illegal immigration--and Napolitano will be able to present a credible case that she has had a centrist record on immigration reform.  She will also persuade some conservative Republicans that she is up on the terror issue (based on classified info), and that they should have confidence in her to make prudent decisions on national security law.  Her comments on the Christmas bomber can be explained as attempts to minimize panic.  This cancer survivor is of Italian ancestry but is a Methodist.  The fact that she was on the Anita Hill legal team doesn't hurt either--this is a crew that loves to hate Justice Thomas.

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Discussions - 10 Comments

I think I can pretty much promise you that putting a pol on the Court eventually ends the Court''s role as known today. Which I'm more than fine with.

As far as the "irrational screeds", I have grown tired of this. Since we are going to only blame those who question why we have to compromise at all, all I need is for folks to point out what other laws are not really going to be faithfully enforced because there is a politically influential group not wanting it to be enforced, just so I can keep myself from naively believing in this "nation of laws, not men" tomfoolery.

However, I will say that if we are going to permanently be this cynical about the rules, I just need to go ahead and move to France, where at least I can have better food, wine, and affairs.

"... eventually ends the Court''s role as known today."

Elaborate, please. How would you characterize the Court's role as known today, and what would you anticipate would be the role it would assume?

I ask because I've often wondered what would happen if some Court ruling was so absurd the other two branches simply ignored it.

Absent the Court's effective authority to rule, what progresses from there?

If that is the route they want to take then the job will be to mount a spirited defense--not so much of Justice Thomas--but of Justice Thomas' jurisprudence . . . in other words, the fight that they avoided in 1991 by dredging up Anita Hill. This is the fight that they don't want to have. That's why she surfaced. Now that there is no one person who can be the subject of their deflected attacks--but only Napolitano--the challenge will be to completely ignore everything about who she is and what she has done and, instead, force her to defend her idea of jurisprudence against that of one closer to Thomas' ideas (without, necessarily and openly, calling it Thomas' jurisprudence).

Do we have anyone on the judiciary committee who can come close to doing something like that?

But let me be clear about the purposes . . . there is no point in working to oppose her nomination (or, really, that of anyone short of a known and convicted ax murderer). So the point would be to use the confirmation hearings to fight on ground most worth defending. Is it worth it to engage in an argument over her work in the War on Terror? Snooze. (And, anyway, as Ken rightly notes . . . this is exactly what they're hoping we'll do.) Is this the time for the immigration debate? Really? Seriously? Time to fine tune those fiddles if you said "yes."

They are begging for that fight. Arizona seems happy to oblige.

The smart thing to do is to hit them where they're not expecting it and where they are utterly incapable of mounting a good defense. I repeat: this is why they avoided the fight in with Thomas. They know they will look weak when their ideas about jurisprudence are pitted against ours. That's why they always use the Founders/Lincoln as cover . . . but it won't hold up to serious scrutiny. Force them to defend themselves. Put them on the defense. It's high time.

If it's Napolitano, she should be attacked on what sort of justice she'd be, plain and simple. Attacked as anti-originalist. Drag her arrogant judging-by-empathy out into the light of plain logic. Do it across-the-board, not just on terror-relevant jurisprudence.

She's been very unimpressive in her real-time statements as Director of DHS. I really doubt she'll be the nominee.

And Arizonians, go to town. Let them wail. Let the Julies of the G.O.P. worry. The law sounds basically sensible in a way ol' prop 187 did not, and a lot of water has passed under the bridge since then. See Krikorian's analysis on NRO today (follow his links in corner) for why an Amnesty Bill is actually a long shot this year, and thus for a while.

I haven't followed the kremlinology of who Obama will pick closely (for one thing I assume that whoever he picks will always vote in ways I hate in the kinds of cases that are controversial in our time), but I think Napolitano would be a lousy choice for Obama - and good for conservatives. One of the key skills for a modern nominee is to be evasive on weak political points (do you think there is a constitutional right to destroy a fetus in the ninth month at will?) without seeming evasive. There is an art to it, and part of the art is knowing enough constitutional law to bloviate until the audience tunes out while seeming masterful rather than dishonest - this is one Obama's key skills. The little I have seen of Napolitano does not make me confident that she has those skills. The Senate Republicans might not be the sharpest bunch in questioning, but alot of them have been through the process before and if the Obama nominee does not have the chops on constitutional law and a quick mind, the hearings could become a disaster. Getting that background shouldn't be that tough, but based on Jan Crawford Greenburg's book on the Supreme Court, it really is tough, and being a practicing politician doesn't necessarily give you that background and cramming is harder than it sounds.

Elena Kagan is front runner, Diane Wood is second and I am pretty sure it will be one of these two.

Koh, Garland, Sears and Napolitano are dark horses.

I sort of think Wood would be the best choice for Obama. She is best liberal on the 7th and both Easterbrook and Posner listen to her on some key issues.

Julie, I am beginning to have some reservations about the AZ bill the more I learn about it. The headline aspect of "investigate whether someone's illegal if you suspect they are" may be political poison. Shorn of that provision and the one about immigrants having to carry identity papers, the bill looks good. But national politicians should be careful about endorsing those two provisions.

Briefly, I do not oppose the Arizona law. I oppose, with Julie, irrational screeds against the problem of illegal immigration. Obama will pick someone who can help him out, and Napolitano (unless he disfavors her for some other reason) might be his best offensive weapon. I don't see Kagan or Wood offering that help. A Kagan or Garwood pick means he's scared, and he would never let on that he is. All of this of course abstracts from the real issue of merit, but there is little in the record to suppose that Obama takes constitutionalism seriously.

I fail to see how the Arizona law is a victory for anyone who supports limited government. The people of Arizona can now be stopped on any pretext and forced to prove their legal residency status by producing the appropriate papers. Perhaps they can be issued "internal passports" like in the old Soviet Union.

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