Senator Dianne Feinstein has some advice for President Barack Obama about his next Supreme Court nominee: Don’t pick a fight.
“There are people that one can appoint that are respected by both sides,” said Feinstein, a California Democrat and member of the Judiciary Committee, which will hold confirmation hearings. “That’s what I think he ought to look for.”
Republicans say they are more likely than Obama’s Democratic base to be galvanized by a nominee viewed as a liberal activist. And, Feinstein and some of her Democratic colleagues say, a partisan battle may divert attention from other administration goals such as enacting new financial regulations.
Regardless of whom Obama nominates to replace retiring Justice John Paul Stevens, his choice wouldn’t shift the ideological balance on the closely divided nine-member court. Stevens is a leader of the court’s liberal wing on such issues as individual rights, limits to the death penalty and affirmative action.
Senator John Cornyn, a Texas Republican, said Obama should be wary of picking someone to energize liberal Democrats because that also would likely rally a Republican base that easily gets incensed about “unelected judges making policy.” Among the Republican faithful no issue resonates more, he said.
“As they say, the gun kicks just as hard as it shoots,” Cornyn said.
Kagan, Garland, Wood
The White House has declined to comment on possible contenders. Obama can anticipate varying degrees of support for the three leading candidates: Solicitor General Elena Kagan and federal appeals court judges Merrick Garland of the District of Columbia Circuit and Diane Wood from the Chicago-based 7th U.S. Circuit Court of Appeals.
Conservative groups say Wood is the most likely to receive Republican opposition, largely because of her rulings on abortion. “She stands out as arguably the most activist judge on the federal courts,” said Curtis Levey, executive director of the Committee for Justice, a Washington-based group that supports conservative judicial nominees.
Levey cited a 2001 opinion by Wood against abortion clinic protesters that was overturned by the U.S. Supreme Court two years later. He also noted her 2002 dissent from a ruling that upheld an Indiana law requiring women seeking abortions to make two trips to a doctor -- one to give consent in person and the second to terminate the pregnancy.
Garland, who often sides with the government on criminal questions, is least likely to spark a confirmation battle, said Levey. He said Kagan is “probably somewhere in the middle.”
‘Don’t Ask, Don’t Tell’
Kagan’s opposition, as a Harvard Law School professor and its dean, to the military’s “don’t ask, don’t tell” policy that prohibits openly gay men and lesbians from serving in the military may provoke resistance, he said.
Top Senate Republicans, including Minority Whip Jon Kyl of Arizona and Utah Senator Orrin Hatch, predicted that Garland would likely win overwhelming bipartisan support.
“The president is very up to speed on these matters,” Kyl said in an interview. “He knows what will be easily accepted and what will be a lot more time-consuming and difficult.”
“I don’t think the president will consider the politics as much as the substance of the nomination; I certainly hope,” Kyl said. With the midterm congressional elections approaching, he said, White House political advisers are probably telling Obama, “the last thing we need just before the election is to rouse the Republicans’ base and all of those independents who were so upset about health care.”
Several of Feinstein’s fellow Democrats agree that Obama should try to avoid a fight because of the Senate’s packed legislative calendar, including the financial regulatory overhaul, reauthorizing the “No Child Left Behind” school program, immigration and climate change.
“I hope the White House would keep that in mind, less controversial rather than more, given all that’s still on the agenda this year,” said Delaware Senator Tom Carper.
Democrats aren’t unanimous in this view. Pennsylvania Senator Arlen Specter, who switched parties last year and is now in a tight Democratic primary race for his seat, said Obama shouldn’t shy away from a political fight.
“There has to be a recognition that the Supreme Court conference room is an ideological battleground,” Specter said. The president should pick justices “who can carry forward the ideological battle on his terms.”
Senator Dick Durbin, the second-ranking Democrat, predicted a contentious confirmation, citing widespread Republican opposition to Obama’s first nominee, Sonya Sotomayor, when she was confirmed by the Senate last year, 68-31.
“The president is going to work hard to find the right person, but it’s probably going to be a fight anyway,” said Durbin of Illinois. “John Paul Stevens was a moderate Republican. If he could find a John Paul Stevens Republican, I would be perfectly happy. Are there any left?”