What Will Obama Do To Avoid A Supreme Court Fight?

Justice Stevens has now announced his upcoming retirement from the Supreme Court, and commentators are speculating about whom President Obama will choose to replace him. Politico writer Glenn Thrush reports that Obama wants to avoid a "fight" with the Senate regarding Stevens' replacement.

According to Thrush, avoiding a fight means picking a "bipartisan" nominee. He lists three "top-tier" prospects: Elena Kagan, Diane Wood and Merrick Garland.  Thrush says that selecting Wood would "likely spark a serious battle" because she has liberal views regarding abortion. He describes Kagan and Garland, however, as noncontroversial choices.

Thrush also quotes Senator Diane Feinstein to support his conclusion that the Obama administration wants a bipartisan candidate.  Fenstein says that:

The Senate is exhausted. . . .We need 60 votes. I think we need a candidate who is bipartisan, who has the credentials who is respected on both sides of the aisle is what we need to have a quick confirmation. . .I don’t think we need a fight that drags through the summer.

Thrush reports that Rahm Emanuel will have a big role in the selection process.  According to Thrush, Emanuel will take the pulse of the Senate and make sure that Obama chooses a candidate who does not provoke a serious fight.

My Take
It is difficult to imagine how a bipartisan candidate to the Supreme Court would look. Because Republicans have decided to oppose virtually everything that comes from the White House, I suspect that even moderate to conservative candidates like Kagan could generate passionate opposition.

Furthermore, picking candidates favored by Republicans would probably require Obama to compromise the values of his electoral base. Conservatives did not elect Obama; liberals did. Kagan appeals to Republicans because she shares some of their expansive views regarding the power of the Executive during war -- some of the very practices that civil libertarians and Obama himself criticized during the Bush administration.

Additionally, if bipartisanship means a moderate or conservative nominee, this would shift the ideological makeup of the court farther to the right, which Obama was not elected to do. Stevens is solidly a part of the liberal bloc on the Court. Picking someone to the right of him would represent a victory for Republicans.  That Wood's views on abortion frightens conservatives who openly want to the Court to overturn Roe v. Wade should not dictate whether Obama picks her to replace Stevens.

Finally, I find it very odd to argue against fighting for a Supreme Court pick. Since 1967, Democrats have only appointed 3 justices to the Supreme Court, including Sonia Sotomayor. Supreme Court justices have lifetime tenure. They interpret the meaning of the Constitution.  Their views influence the practice of law and the operation of government. Obama promised change. To accomplish change in an area this important requires -- and indeed, should inspire -- a fight. 

Thrush reports that by avoiding a fight, Obama can focus on his domestic agenda. The Supreme Court, however, should constitute a central part of his domestic agenda.

Talking Points on Souter Replacement?

Democrats in the Senate seem to have uniform beliefs about the person President Obama should nominate to replace retiring Supreme Court Justice David Souter. Senator Patrick Leahy believes that President Obama should pick someone "from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge . . ."

Similarly, Senator Arlen Specter has announced that:

I would like to see somebody with broader experience . . . We have a very diverse country. We need more people to express a woman's point of view or a minority point of view, Hispanic or African American . . . somebody who's done something more than wear a black robe for most of their lives.

Senator Harry Reid "hopes that Obama goes outside the existing legal system and finds a former governor or senator, or someone who has 'real life experiences.'"

And Obama himself has said:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook . . . It's also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

Senator Orrin Hatch, who like Specter and Leahy sits on the Senate Judiciary Committee, says that Obama will probably make the selection very quickly -- perhaps even before the end of this week. If President Obama will soon make his announcement, it is very likely that all of the Senate chatter about "life experience" represents talking points designed to create a narrative about the nominee. Stay tuned.

Cynical Outtake
The comments from these guys, espousing the virtues of nontraditional candidates, are somewhat amusing. Leahy, for example, has spent nearly 1/2 of his life in the Senate, first winning election in 1974.

Specter was first elected to the Senate in 1980. He has served in the Senate longer than any other person in Pennsylvania history. He is also the fifth-oldest person in the Senate. Furthermore, he recently switched parties in order to maximize the possibility that he will keep his job.

Reid began his career in Nevada politics in 1967. He became of member of the House of Representatives in 1982, and he became a Senator in 1987, a position he continues to hold. If voters applied the standards that these Senators want Obama to use when selecting a replacement for Souter, it is unclear whether either them would remain Senators.