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.

{mosads}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.