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Avoiding a SCOTUS Fight?

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James Rowley and Laura Litvan report for Bloomberg:

Senator Dianne Feinstein has some advice for President Barack Obama about his next Supreme Court nominee: Don't pick a fight.
"There are people that one can appoint that are respected by both sides," said Feinstein, a California Democrat and member of the Judiciary Committee, which will hold confirmation hearings. "That's what I think he ought to look for."
President Obama was in California recently, warning California Democrats that the other senator might lose her reelection bid. Having to defend a murderer-friendly nominee wouldn't help Senator Boxer in a state where voters regularly vote tough on crime, however left-of-center they may be on other issues.

One short-lister widely regarded as an "avoid a fight" pick is Judge Merrick Garland of the D.C. Circuit.  Tom Goldstein has this post at SCOTUSblog reviewing his record. He contends that "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions." But "rarely" needs to be understood in the context of the D.C. Circuit's workload. That court hears no state-prisoner habeas cases, not even from the quasi-state courts of D.C. (See Swain v. Pressley.) The criminal cases are all federal prosecution appeals. A high affirmance rate in such cases is common. Even so, Tom makes the case that Garland is more favorable to the prosecution than "his more-liberal colleagues...."

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The problem is that Feinstein has the politics figured out wrong. It is in Obama's interest to HAVE a fight, not avoid one.

It's going to be a "base" election. That is, we are no longer in a fight for the middle. Obama abandoned that in order to get the gargantuan government healthcare bill knowing the middle didn't want it.

Obama knows where he is even if Feinstein doesn't. Obama will pick someone to energize the base. A minority (Judge Williams) or a big-name Democratic figure (Hillary) does that. Merrick Garland doesn't.

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