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the Politico reports that, in wake of forty-two Senators sending a letter indicating that Sir Donald Berwick is simply unacceptable for the job of Centers for Medicare and Medicaid Services (CMS) head*, Senate Democrats have made an answer to that by… giving up trying to get Berwick nominated. There’ll be no fight, no confirmation hearing, no standing on what the Democrats consider ‘principle.’ They’ll just let him keep going until later in 2011. I’m not fully checked out on the minutiae of recess appointments, but presumably the President can make another recess appointment for Berwick during the next time that the Senate is in recess for long enough.

But that’s not really the point; the point is that it’s clear that one thing is true in the 112th Congress that was also true in the 111th. To wit: Democrats won’t fight. Oh, sure, when they have the votes they’re the toughest guys in the room, and will be happy to walk all over you: witness that ludicrous strutting over passage of Obamacare back in 2009. But the second that they don’t have a sure thing, Democratic politicians cave (see the defeat of the Obama tax hikes during the lame duck session). They cave – or, as we’re seeing in the states, Democratic politicians run away. Because Democratic politicians are cowards, from top to bottom. And here’s the fun part: we know it. Which is why those forty-two Senators sent the letter. Which is why Senate Democrats caved on the cuts in the current CR. Which is why they’ll break later on the budget. They just don’t know how to be brave and fight for their beliefs**.

Poor things.

     Unnamed White House sources are saying that Barack Obama will name the Solicitor General Elena Kagan to fill the seat of retiring Supreme Court Justice John Paul Stevens, probably on Monday or Tuesday. Other White House sources say the President is still in the review process.

     FOXNews, through Major Garrett, has reported that Kagan, the former Dean of Harvard Law School, is the likely nominee, and the rationale for the choice supports her appointment:

                       (1) Ms. Kagan has NOT served on the judiciary, thus she will have a far shorter “paper trail” that might trip up her nomination,

                       (2) Ms. Kagan is a known acquaintance to the Obama White House,

                      (3) As Solicitor General, Ms. Kagan has already gone through the Senate confirmation process, which would enable the Senate Judiciary committee to move forward without a great deal of delay on her hearings,

                      (4) Having already been confirmed as Solicitor General by the Senate, Ms. Kagan is a choice that is less likely to be the subject of a filibuster from the minority party.

       The choice of Elena Kagan would appear to be a “safe” choice for the Obama administration, perhaps signalling that they are not up to the expenditure of a great deal of political capital as the midterm elections loom on the horizon. Or, given her close ties to the Obama White House, perhaps they view her as one of their pawns on upcoming cases, such as campaign reform and ObamaCare. A word of caution to the Obama White House: the choice of a close associate backfired on George W. Bush, when he nominated Harriett Meiers to the high Court, as she later withdrew her name.

      Abortion groups and gay marriage groups, on both sides of the issues, will be watching her appointment and confirmation process carefully and closely.

Cartoonist Chip Bok: Which Republican dares to take the first swing?