Picking replacement for Stevens to test Obama's commitment to liberal base

Supreme Court Justice John Paul Stevens’s retirement will test President Barack Obama’s commitment to his liberal activist base.

Even conservatives groups recognize that Obama is likely to replace Stevens, the leader of the court’s liberal bloc, with another liberal, so the selection would not shift the ideological nature of the high court.

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The question is just how far Obama will go to appease liberal legal activists, who were not completely sated by the selection of Sonia Sotomayor, the president’s first choice to fill a Supreme Court vacancy. Obama will have a chance to name a second justice to the court in two years because of Stevens’s retirement.

Obama said Friday he hopes to have a Stevens successor confirmed by the beginning of the Supreme Court’s session in October, but the battle ahead is likely to be more difficult than last year’s.

It follows a partisan fight over healthcare and will take place as the Senate has one eye on this fall’s elections.

Conservative groups have already started sending signals to the White House about which potential nominees they would favor and others they would mobilize to fight. Republican senators on Friday also vowed to fight Obama if he nominates an “activist” justice.

One senior GOP aide said the party will push Obama to pick a consensus nominee instead of playing to his party’s liberal base.

“Democrats have a tough choice coming,” the aide said. “Everything they’ve done for the past year and a half has united Republicans, and if they nominate a left judge, they will have united conservatives on a completely new topic right before the election.”

The real battle over the nominee, however, is likely to take place within the Democratic party since Democrats only need one GOP senator to join them in order to move forward on a vote.

Nominees need a simply majority for confirmation in the Senate – Vice President Joe Biden would break a tie in the case of a 50-50 vote – though any nominee must be able to gain 60 votes to end debate on his or her nomination.

Initial speculation about potential nominees focused on two female candidates: Federal Appellate Judge Diane Wood and U.S. Solicitor General Elena Kagan. Obama interviewed and considered both before settling on Sotomayor last year.

Other legal figures in the mix are U.S. Appeals Court Judge Merrick Garland and Massachusetts Gov. Deval Patrick. Obama also seriously considered Michigan Gov. Jennifer Granholm (D) last year.

Colin Hanna of the conservative group Let Freedom Ring suggested Kagan could
survive the nomination fight, but he questioned whether she had the liberal credentials to  survive.

He said Republicans expect Obama to replace Stevens with an equally liberal justice, and that his group would only call for a Republican filibuster if a particular nominee represents a significant departure from the expected norm.

Kagan, however, may not be liberal enough for Obama’s base, Hanna said, noting her support for the president’s broad authority to detain enemy combatants.

Wood, on the other hand, could prompt calls for a filibuster because of her strong views on abortion rights, Hanna said.

Dr. Charmain Yoest, president of American United for Life, quickly issued a release Friday morning saying that Obama’s short list includes nominees who have a “radical track record” on abortion.

“If a nominee is selected who is committed to imposing his or her social agenda on the Court, rather than interpreting the Constitution fairly, we will work to oppose their confirmation vigorously,” he said.

For their part, liberal groups started mounting a defense of the top rumored nominees. Doug Kendall, president of the Constitutional Accountability Center singled out Kagan, Wood and Garland as having “remarkable” qualifications for the job.

Ed Whelan III, the president of the Ethics and Public Policy Center, and influential conservative voice on constitutional law and the judicial confirmation process, has questioned whether the left would exert any sway in stopping Kagan from being nominated because she is not liberal enough.

Quoting the New York Times, Whelan noted that Kagan has provided few clues about where she stands on the great legal issues of the day and established a reputation for finding middle ground on thorny legal issues.

One notable exception is her unabashed support for gay rights and her opposition to Don’t Ask, Don’t Tell and her work to repeal the Defense of Marriage Act, which the Obama administration opposes.

“Diane Woods has a much more objectionable record than Elena Kagan – Kagan has largely no clear record on a lot of things given her background in academia,” Whelan said. “She seems to have indulged her policy preferences on gay issues [during her time as solicitor general] and I’m concerned she will indulge her other preferences as
well.”

Conservatives are quick to note Kagan appears to share some of their views on national security and executive power. At her confirmation hearing for solicitor general, she said the president should maintain broad authority to detain enemy combatants. As dean of Harvard law school, she treated Justice Scalia and other conservative members of the legal community with admiration and respect.

Whelan also pointed out that Kagan’s work as solicitor general could prove to be a liability because she would face recusal obligations in her initial two or three years on the court.

Among other issues, Kagan would have to disqualify herself in all cases in which she tried to appeal any adverse district-court ruling on behalf of the government as well as legislation supported by the Obama administration, including the healthcare overhaul, the president’s top legislative accomplishment. In the even that the eighth other justices are divided, her recusals could mean that conservative ruling sin lower courts could stand.

Democrats were less open about their views on potential nominees, allowing the party time to offer Stevens their thanks and praise for a lifetime of work and giving Obama some breathing room before the selection process begins in earnest.

Sen. Pat Leahy (D-Vt.), Judiciary’s chairman, urged both sides to engage in a “thoughtful and civil discourse” during the process to replace Stevens.

“I expect President Obama to continue his practice of consulting with members on both sides of the aisle as he considers this important nomination,” Leahy said.

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