The President's choice to succeed John Paul Stevens on the Court may be less significant for the country than the ugly confirmation process that is sure to follow. A legal saint, if there were one, would only be the excuse for a Senate auto de fe to embarrass the Obama Administration and curry favor for Tea Party votes in November.
"Justice Stevens," the New York Times editorializes, "has been an eloquent voice for civil liberties, equal rights and fairness. Mr. Obama should fill his seat with someone equally committed to these principles."
In today's poisoned political climate, those qualities will be viewed as anti-American as Justice Sonia Sotomayor's "empathy" when she was being vetted for the last vacancy.
To underscore that, as Justice Stevens announced retirement, the President had to withdraw his nomination of the eminently qualified Dawn Johnsen to head the Office of Legal Counsel at the Justice Department after a year of bitter Senate stalling.
“After years of politicization of the office during the previous administration," a White House statement said, "the president believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to--to provide impartial legal advice and constitutional analysis to the executive branch.”
But "impartial legal advice and constitutional analysis" are out of style on Capitol Hill, where the standard is now pandering to the prejudices of self-proclaimed patriots who have been whipped into an anti-Obama frenzy.
Ironically, all this would seem to argue for a Presidential choice that abandons caution and welcomes the ideological engagement that is sure to follow.
Is he up for that? At the very least, he should recall the immortal words of Sen. Roman Hruska in favor of Nixon's nomination of G. Harrold Carswell in 1970, who was deemed mediocre by legal experts across the political spectrum:
"Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos."
Why not? The mediocre and worse have taken over Congress and, judging from the Republican field so far, have a shot at the presidency in 2012. Can't we try for excellence somewhere in Washington?