Posted by | August 6, 2010 15:29 | Filed under: Top Stories

by Stuart Shapiro

Elena Kagan was confirmed to the Supreme Court with 63 votes yesterday.  Sixteen years ago, Ruth Bader Ginsburg, whose liberal credentials make Kagan look like Antonin Scalia, received 96 votes for confirmation.  And Kagan was replacing a liberal.  What if Obama (or another Democratic President) names someone to replace Scalia or Kennedy (both 74 years young)?  Tom Goldstein (via Politico) has the answer:

We are well on our way to a huge train wreck,” said Tom Goldstein, a veteran Supreme Court litigator. “I do think this is a corner we won’t be able to turn back [from], or at least there’s no sign the Senate will turn back from, for a long time.” If 60 “yes” votes “is the best anyone is going to have, a Supreme Court confirmation fight could easily turn into thermonuclear war.”

I think that Obama is holding a very centrist nominee in reserve for just this occasion (Merrick Garland to be specific).  But it may not matter.  If the Republicans pick up 4-5 seats in the Senate (a conservative and I think realistic estimate), the road to 60 gets harder for anything. For a judicial nominee, no matter who it is, it may become impossible.  Then we have a constitutional crisis.
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Copyright 2010 Liberaland
By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.