Court Fight Rests on a Name

Posted April 13, 2010 at 6:43pm

Senate Republican leaders say they are pleased President Barack Obama is hosting them at the White House next week to discuss the looming Supreme Court vacancy, but they say they still aren’t willing to rule out employing the filibuster if they don’t like the president’s pick to fill the slot.

“Words in those meetings can be very helpful,” Judiciary ranking member Jeff Sessions (R-Ala.) said Tuesday. “But the decision about the kind of process that will occur will depend on who the president nominates. It’s in his hands. If he nominates a person that is perceived as committed to not following the law as written, then I think the nominee will have trouble.”

Obama announced Tuesday that he will host a sit-down session with several key Senators next Wednesday to discuss his plan for appointing a replacement for retiring Justice John Paul Stevens. Senators invited to the meeting include Majority Leader Harry Reid (D-Nev.), Minority Leader Mitch McConnell (R-Ky.), Judiciary Chairman Patrick Leahy (D-Vt.) and Sessions.

The meeting comes as several Republicans have suggested they might filibuster Obama’s nomination if he or she comes to the position with a certain ideological bent. The candidate, those GOP Senators say, must be a moderate jurist who would rule with impartiality.

But those Republicans were feeling the pushback this week from Senate Democrats who argued a filibuster would do the minority more harm than good heading into the high-stakes, midterm elections.

“It’s going to be at their peril,” said Sen. Amy Klobuchar (D-Minn.), who sits on the Judiciary Committee.

[IMGCAP(1)]Sen. Dianne Feinstein (D-Calif.), who also sits on the Judiciary panel, said she thought it was too early to be bracing for the prospect of a filibuster. She said Obama was smart to be meeting with GOP leaders to discuss the high court vacancy in advance of committee hearings. Obama has said he would like to announce his selection within the next few weeks, and Leahy has said he expects the Senate would confirm that individual by the August recess.

“The president can ask for their views, or if they have suggestions for some nominees, he can certainly consider them,” Feinstein said.

Sessions said that while he is looking forward to next week’s meeting with the president, he didn’t find similar sessions to be particularly helpful in the past. A meeting Obama held last year prior to the nomination of Justice Sonia Sotomayor was largely limited to broader judicial issues, Sessions said.

“We had a nice conversation last time. People brought up their personal views about the court. We talked about what kind of experience and background they would have. We talked a little about the philosophy of judging,” Sessions said.

The specific agenda for next week’s meeting is not known, but what is clear is Republicans aren’t prepared to dismiss the filibuster altogether until they have a new Supreme Court nominee before them.

Senate Minority Whip Jon Kyl (R-Ariz.), who is also on the Judiciary Committee, said Republicans are prepared to push back on the president’s choice if he or she is someone who has expressed strong political views or who has a record of making decisions based on ideology instead of the law.

If Obama were to pick such a nominee, he “would tempt opposition and potentially even filibuster depending upon how serious the situation was or how … extraordinary it was,” Kyl said during a Tuesday floor speech.

Sen. Lindsey Graham (S.C.) — the only Republican on the Judiciary panel who voted to confirm Sotomayor last year — said he doesn’t believe Obama will end up nominating a candidate who will prompt a filibuster.

“My view is that moderate Democrats would like to support a real liberal judge like they would like a hole in the head after health care, so the politics of this make sense for the president to find a consensus candidate,” Graham argued, adding that in order for Republicans to even consider a filibuster Obama would “have to nominate someone who lost moderate Democratic support and galvanized all Republicans. It’s probably hard to do, but I don’t ever underestimate people around here.”

Graham also pointed out that Republicans like Kyl and Republican Conference Chairman Lamar Alexander (Tenn.) — who have raised the possibility of a filibuster — have done so in the context of the “extraordinary circumstance” standard set by the “gang of 14” during the 2005 fight over President George W. Bush’s stalled judicial nominees. Graham was a member of the bipartisan group of seven Democrats and seven Republicans.

“I’ve heard a lot of my Republican colleagues refer to the ‘gang of 14′ standard for extraordinary circumstances, which I think is a pretty good test for the Senate. As we defined it, [a candidate prompting an extraordinary circumstance] is someone who is not qualified, someone basically more ideological than they are judicial. So it would be a tough test to me, but I think it’s a good test to employ in a situation like this,” Graham said Tuesday.

Likewise, Sen. Orrin Hatch (R-Utah), a senior member of the Judiciary panel, also downplayed the chances of a GOP filibuster; he said Obama should view him as an ally in the confirmation process, and said he will “certainly” try to help get a nominee through the Senate. Hatch even praised one potential candidate, D.C. Federal Appeals Court Judge Merrick Garland, as a solid choice.

“There’s no question he’s liberal, but he’s certainly not an activist. He would go through virtually unanimously,” Hatch said. “He’s a very fine man who knows what the role of the judge is.”