Justice Stevens will be missed — but the reasons why are better set out by other pens. For the moment, we should note that if, in fact, the Republican Party hopes to turn the process of replacing Stevens into a referendum on the constitutionality of the healthcare act, they’ll be sorely disappointed. Even acknowledging as sadly normal the bizarre conservative propensity to reduce complex decisions about the future of our legal system to single issue engagements — enough with the logic and reasoning, how do you feel about abortion? — choosing healthcare reform as the lodestar by which to judge our judges presupposes that it’s an issue at the center of the debate, about which reasonable minds can differ for legal, or political reasons.
It’s not. While questions like abortion, or detainee policy, may lie along the axis that divides the political parties, and thus may fairly be a point which Republicans can hope to win, overturning the healthcare act on Commerce Clause grounds would require such a revolution, and a departure from settled law, that to require it of a judicial nominee would be to require the very activism that Republicans purport to deride. If the mere filing of these vexatious suits doesn’t itself prove a conservative intention to politicize the judiciary — which plaintiffs can do almost as well as judges — making the issue anything more than a footnote in the confirmation proceedings would.
It would also indicate a backbone that we, apparently, don’t yet have. Already, this past weekend, the President started to back away from the notion of a tough confirmation battle. At this point, the idea that Republicans will fail to overblow any action taken by President Obama is hopelessly naive, meaning that any statement about an intention to avoid a fight should be immediately followed by something like:
But I expect to find one anyways, no matter what I do, so, since the Republicans aren’t interested in governing, we’re prepared to go this one alone, too.
Binding the GOP to a game of chicken means binding them to lose it. Even a hint of putting healthcare back in issue means the Republicans have already forsaken the middle ground. It’s time we acknowledge it.