In 1904 Colorado Governor James Peabody had the state police physically place Mary "Mother" Jones on a train heading out of Denver after she was accused of rousing rabble among striking coal miners – which she most certainly was, of course. She exited the first stop across the state line, got on the first train returning to Denver, and sent Gov. Peabody a letter that read, in part:

I wish to notify you, governor, that you don't own the state. When it was admitted to the sisterhood of states, my fathers gave me a share of stock in it; and that is all they gave to you. The civil courts are open. If I break a law of a state or nation it is the duty of the civil courts to deal with me. That is why my forefathers established those courts to keep dictators and tyrants such as you from interfering with civilians. I am right here in the capital, after being out nine or ten hours, four or five blocks from your office. I want to ask you, governor, what in the Hell are you going to do about it?

Sometimes the best negotiation is not to negotiate. Acknowledge the rules of the game and tell the other party "Your move."

Within 45 minutes of David Souter's retirement announcement the usual suspects were in full pant-shitting rage over the President's replacement (who, of course, hasn't been chosen but is almost certainly the antichrist). The fake right-wing interest groups that exist to protest any judicial nominee to the left of Bill Frist have leapt into action. And it's clear from the outset that they know exactly how many legs they have to stand on in this fight, as their statements make clear:

Leaders on the call, such as Wendy Long of the Judicial Confirmation Network, told colleagues that one of their first challenges is convincing activists there is a fight to be had. (snip)

Conservative activists also made it clear that they're concerned about whether Republican senators have the stomach for this fight, since they know going in that Democrats have a nearly filibuster proof majority.

"We've really got to make it clear that we have certain expectations for Republican senators," Levy said, "Including the fact that they study the nominee and not run to the podium to endorse the nominee whoever it is.”

Another member of the Judicial Confirmation Network, Gary Marx, said he has the same concerns. "We need to really be focused on putting wind in the sails of these Republican senators at this stage of the battle," said Marx.

The question they can't answer, of course, is what in the hell the Senate GOP is supposed to do about it. In my read of the criticism (i.e., Michelle Malkin's predictable illiterate ravings) what they really want the Republicans to do is piss and moan and somehow stop a nomination process they have almost no ability to influence. Perfect. That's what the GOP can do well: ineffectually bitch.

I don't want to say anything as cliched as "This is Obama's first big test," but this is Obama's first big test. The person he appoints will have a 20+ year legacy and the President absolutely cannot bend too far to appease the 40 people the GOP has remaining in the Senate. With Specter the Democrats have sixty – once the Franken mess is sorted out – and thus no power. The only thing that is important for the President is to make 60, not 100, happy. As weak as the coalition of 60 seems, this is not an impossible task.

The Democrats have 55 solid people who will support just about any nominee who isn't completely wacky. Franken is 56, and his situation may be resolved in the near future. Lieberman and Specter are 57 and 58. Normally this would be horrifying, but Holy Joe has consistently expressed pro-choice views throughout his political career and wears a 100% rating from NARAL. While there is considerable skepticism about what Specter will do here, remember that he is worried about impressing liberal Pennsylvanians and this might be a good housewarming gift. He wants to avoid Democratic primary challengers, not alienate the party he just joined in hopes of getting re-elected next year. 59 and 60 are a little more tricky: Ben Nelson (D-NE) and Evan Bayh (D-IN).

It's widely accepted among Democrats that Nelson is about as useful as tits on a steer. They accept him and his voting record because he helps them numerically. That's about it. He's a conservative from a conservative state. Bayh is enamored of the mushy center and his social views trend toward conservative. Obama can accomodate these two without accomodating them, without compromising the integrity of what he is trying to do here. Pick five nominees who are essentially the same – young and liberal. Tell the pair of Senators "Pick one you like. Pick one you could live with. Pick three you can't live with." They will inevitably discard three of them based on superficial "controversial" aspects of their record – some inflammatory speech the nominee gave, some transgression from his or her personal background, or some ruling on a hot-button but irrelevant issue like flag burning or displaying Nativity scenes. Problem solved.

Like the toy steering wheel my nephew likes to spin while mom drives the van, the key is to make the would-be obstructionists feel like they're controlling the process when in reality they are being skillfully manipulated. Telling Evan Bayh that he gets to pick the nominee makes him feel like a Big Boy who drinks from an adult cup. Let him have that meaningless thrill. The key is to present a group of options who are identical on significant issues. Let the Senate bicker over someone's opinion on displaying the Ten Commandments in courthouses. The overarching goal is to get the substantive issues right. All else is chaff.