Senate Preps for Battle

Supreme Court Fight to Dominate Calendar

Posted April 9, 2010 at 5:33pm

Supreme Court Justice John Paul Stevens’ announcement Friday that he is retiring from the bench at the end of the court’s current term has set up a midsummer Senate confirmation fight that could dominate Washington, D.C., for months and provide fresh momentum for the GOP heading into fall.

Senate Republicans insist that they will not prejudge the confirmation process for Stevens’ successor. But immediately after the retirement news broke, GOP Senators urged President Barack Obama to avoid picking an ideologue and to tap a moderate jurist who would rule impartially. And outside groups and candidates were already framing the upcoming battle as a political opportunity.

“I can’t imagine any circumstance in which this is helpful to Democratic Senate candidates to spend the last few weeks before the election on a Washington-centric debate,” one GOP operative argued, adding that a Supreme Court confirmation fight “energizes our base at a time that the energy is certainly greater on our side than it is on the other … this is a net positive for our side.”

Obama said Friday that he will nominate Stevens’ replacement “in the coming weeks.” If the timeline mirrors last year’s debate over Sonia Sotomayor’s installment on the high court, a new justice could be confirmed by the middle of July. Stevens said he would step aside sometime before the Supreme Court begins its next work period this October.

“It is in the best interests of the Supreme Court to have a successor appointed and confirmed before the next term begins. And so I will move quickly to name a nominee, as I did with Justice Sotomayor,” Obama said during remarks in the Rose Garden late last week.

Obama nominated Sotomayor, then a federal appellate court judge, on May 26. She was confirmed by the Senate 72 days later, following two weeks of hearings in the Judiciary Committee.

The president said he will select a replacement with qualities similar to Stevens: an individual with “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of the law, and a keen understanding of how the law affects the daily lives of the American people.” Stevens, whose 90th birthday is April 20, served on the Supreme Court for more than three decades and was widely viewed as its most liberal member.

In addition, Obama said, his selection will understand that “powerful interests must not be allowed to drown out the voices of ordinary citizens.”

[IMGCAP(1)]Possible replacements for Stevens include Solicitor General Elena Kagan and federal appellate judges Diane Wood and Merrick Garland. All three were on Obama’s list last year before he chose to nominate Sotomayor.

Others who have been floated include Michigan Gov. Jennifer Granholm (D), Interior Secretary Ken Salazar, Homeland Security Secretary Janet Napolitano, Stanford University law professor Pamela Karlan, State Department legal adviser Harold Koh and Massachusetts Gov. Deval Patrick (D).

Sen. Charles Schumer (D-N.Y.), a Judiciary member and the Conference vice chairman, suggested Obama tap an individual who could be swiftly confirmed with bipartisan support, rather than someone who would ignite a major partisan battle just before the November elections.

“I think you can find someone in the image of Judge Stevens who is able to reach out to all factions and win people from all over,” Schumer said during a conference call with reporters Friday. “It’s important to have a person who might be able to sway the court and move it in his or her direction.”

Schumer also urged the Senate to move quickly on the nomination and not wait until after the midterms. “That would represent an unacceptable and unreasonable delay,” Schumer said.

But Republicans and conservative activists made clear Friday that Obama’s second Supreme Court nominee would face a difficult and potentially lengthy road to confirmation, particularly if Obama selects someone with what they view as a liberal or activist judicial philosophy.

Judiciary ranking member Jeff Sessions (R-Ala.) said Friday that while he hopes to support Obama’s pick, he “cannot and will not vote for a nominee with a record that fails to demonstrate a commitment to the Constitution, the rule of law and the oath of a judge.” Likewise, Sen. Orrin Hatch (R-Utah), a member and former chairman of Judiciary, warned Obama against putting up a nominee more driven by personal politics than by strict adherence to the Constitution.

“Someone who would be an activist judge, who would substitute their own views for what the law requires, is not qualified to serve on the federal bench,” Hatch said.

One aide said to expect Senate Republicans to repeatedly argue her hearings resulted in the “total rejection of this empathy standard … the idea that you make decisions based on anything other than the letter of the law has been rejected.”

Aides to Sessions and to GOP leadership have been preparing for a second Obama Supreme Court nominee for months and are likely to handle this confirmation battle similarly to Sotomayor’s. In that case, GOP Senators tried to raise questions about whether Sotomayor would try to legislate from the bench and whether she would follow the rule of law when deciding cases.

One GOP leadership aide noted that unlike last year’s Supreme Court fight — when Sessions as the newly minted ranking member was forced to work with a staff he inherited from party-switcher Sen. Arlen Specter (D-Pa.) — Sessions now has a complete staff in place that has worked together for some time. Additionally, Republicans have learned some lessons from previous executive branch confirmation fights: GOP Senators will be careful to fully vet the candidate before announcing their support or opposition. “We won’t pre-confirm, we won’t pre-judge,” the aide said.

Republicans will maintain that “the nominee will be considered when the nomination is made” and that Republicans are “committed to a very serious process,” the aide added.

National Republican Senatorial Committee Chairman John Cornyn (Texas), a member of Judiciary, said that while he would withhold judgment until Obama makes a formal nomination, Democrats should not expect to secure confirmation of a liberal justice simply because Stevens also is a liberal.

“I don’t buy into the idea that just because a liberal judge is retiring the president has carte blanche to nominate another liberal,” Cornyn said, warning that “if you’ve got a judge with an agenda, there’s going to be fireworks.”

Jessica Brady contributed to this report.