A second Supreme Court confirmation fight during this Congress is all but certain to bring the Senate to a virtual standstill. But Senators in both parties don’t appear to be cowering from the fight; rather, they seem to be encouraging it.
Justice John Paul Stevens, appointed by President Gerald Ford, told the New Yorker this week that he plans to exit the high court in the next three years and that he would likely announce his decision before his 90th birthday in April. If Stevens decides to retire later this year, Senators predict the fight to replace him could run right up until the midterm elections. The vetting process for Justice Sonia Sotomayor last year lasted several months. And while Senate Republicans grudgingly allowed for a relatively expedited confirmation process for Sotomayor — President Barack Obama’s first high court selection — they are unlikely to allow for a swift consideration of Stevens’ replacement.
Officially, the White House and Judiciary Chairman Patrick Leahy (D-Vt.) are keeping mum on whom Obama might tap to fill Stevens’ shoes on the court, opting to wait until he makes his official announcement. But there’s no doubt Democrats and Republicans alike have been preparing for another battle over the court, which leans conservative. Stevens, who joined the court in 1975, is considered the leader of the court’s liberal flank.
White House spokesman Ben LaBolt declined to comment on plans for replacing Stevens, as did Leahy.
“I’ve had a number of private discussions over a period of time with Justice Stevens, so there’s really no way I can respond without going into those discussions — so I’m not going to,” Leahy said.
And while some of the chamber’s most vulnerable Members — particularly on the Democratic side — are reluctant to take up another partisan Supreme Court fight, most Senate Democrats said they are ready to do battle.
Sen. Dianne Feinstein (D-Calif.), a senior member of Judiciary, said there is “no question” the committee has the appetite to take up another Obama pick. “Dependent upon who the president nominates, absolutely, the Judiciary Committee would be willing to take it on,” Feinstein said. “The next justice will be a very pivotal justice. … The president knows the importance of it. So, we’ll see.”
Sen. Bernie Sanders (I-Vt.), one of the chamber’s most liberal lawmakers but not a Judiciary member, said he hopes Stevens’ replacement would shift the court back to the middle, arguing the bench’s right-of-center bent has taken the country in the wrong direction.
“I am concerned the Supreme Court has, from my perspective, has become extremely political,” Sanders said, adding that he hopes Obama chooses someone who “has a sense for how the real world is.”
Sanders also said he expects the Supreme Court’s recent campaign finance decision in Citizens United v. the Federal Election Commission will “absolutely” be a central aspect to the debate over the next installment on the bench. The high court ruled in that controversial case that corporations and unions can spend unlimited sums to influence elections.
“The recent Citizens United decision appeared to me to be extremely political,” Sanders said.
National Republican Senatorial Committee Chairman John Cornyn (Texas), however, warned that if Obama’s next Supreme Court selection boasts a decidedly liberal record, Republicans will go on the offensive.
GOP Senators mounted a coordinated campaign last year to derail Sotomayor’s nomination, raising questions about her record on the bench and her judicial temperament. Even though they didn’t dispute her qualifications, Republicans took issue with several of her statements and comments that they said suggested she would legislate form the bench. “I hope they’re not saying they have a litmus test for their judges,” Cornyn, who serves on Judiciary, said Tuesday.
Cornyn cautioned Obama to select any future Supreme Court nominee wisely; he argued that Democrats have shown increasing hostility toward the judiciary, including during Obama’s State of the Union when he said the court made the wrong decision in the Citizens United case. Cornyn and other Republicans argued that a Supreme Court confirmation battle so close to this year’s election could end up benefiting the GOP, which has traditionally used court nominations to rally the conservative base.
“I think it would be very good for us because this is an issue that our base cares deeply about,” Cornyn said.
A Senate GOP aide agreed, saying a confirmation battle would only add insult to injury for a Democratic Party trying to move beyond the health care reform debate and near-double-digit unemployment.
“A drawn-out, ideological debate on the judiciary I don’t think fares well for the administration” and Senate Democrats, the GOP aide said.
Republicans did, however, acknowledge that the intensity of the fight would likely be dictated by whom Obama chooses.
“It always depends on who they nominate,” said Sen. Tom Coburn (R-Okla.), a Judiciary member.
Obama kept his cards close to the vest before selecting Sotomayor in May, and many insiders expect he would approach the next vacancy similarly.
“He hasn’t really tipped his hat one way or another,” said one source familiar with Obama’s approach to potential Supreme Court vacancies. “If he were George W. Bush, we’d know exactly who it was. Bush based his position solely on politics. Obama weighs different factors, like competence and diversity.”
Several names floated prior to Sotomayor’s nomination are likely to resurface in the search to replace Stevens. Candidates topping the list include Elena Kagan, who is the solicitor general, and Diane Wood, a federal judge on the Court of Appeals for the 7th Circuit.
Other possible contenders include Michigan Gov. Jennifer Granholm (D), Interior Secretary Ken Salazar, Homeland Security Secretary Janet Napolitano, Stanford University law professor Pam Karlan, State Department legal adviser Harold Koh and Massachusetts Gov. Deval Patrick (D).
But whomever Obama taps, he will have big shoes to fill, namely because of the leadership role Stevens has played for more than three decades, said Nan Aron, president of Alliance for Justice, a national association of public interest advocacy groups.
“He’s been a master tactician, strategist and spokesperson on the court for the powerless and marginalized constituencies. One hopes the president will look to someone with similar qualities,” Aron said.