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Will Obama Seek to Defuse Conflicts Over Confirmation?

With the retirement of Supreme Court Justice David H. Souter, President Obama has another opportunity to define his young presidency.

The replacement of Souter, who has been a reliable part of what constitutes a liberal block on the high court, is not likely to shift the ideological balance. Obama will almost certainly reinforce the liberal bloc and, with the nomination of a youthful justice, conceivably reinvigorate that wing of the court for many years to come. He probably won't pick a Souter, which is to say he will avoid picking someone whose judicial philosophy isn't already absolutely clear.

Given the makeup of his Cabinet and White House staff, it's plain that diversity is a principal goal in Obama's personnel selections. On a court that is devoid of Latinos and has just one woman and one African American, Obama could instantly alter the gender or racial balance in a significant way. That is why so much of the early speculation on a successor has focused on women in particular.

The court as currently composed represents a narrow slice of America in another way. They are for the most part graduates of two law schools -- Harvard and Yale -- and their routse to the Supreme Court included tenure on appellate circuit courts. Obama's nominee will reveal how much that lack of diversity of background concerns him.

Obama's choice will be important in another way. After a series of inflamed confirmation fights over judicial nominees, will the president be effective in lowering the temperatures on the left and right as the confirmation process plays out? On this, Obama's record is contradictory.

There are few rituals more established in Washington than the battle over the confirmation of a new Supreme Court justice. It was only a matter of hours after the first reports of Souter's pending retirement that the machinery of the interest groups on the right and left had cranked into action. With a Democrat in the White House, those on the right were especially vociferous in declaring some potential nominees out of bounds -- as those on the left were during George W. Bush's presidency.

One person who doesn't appreciate all that comes with that ritual -- the to-the-barricades rhetoric, the unforgiving ideological stamping of the nominees, the often overheated attention to hot-button issues -- is a former Democratic senator who spoke of his dislikes almost four years ago in the midst of the confirmation debate over now-Chief Justice John G. Roberts Jr.

This former senator chastised liberal advocacy groups for attacking the ranking Democrat on the Senate Judiciary Committee, Patrick J. Leahy of Vermont, who had decided to support Roberts's confirmation. He also accused groups on both the left and right of taking an "unyielding, unbending, dogmatic approach" that had created "a poisonous atmosphere" when it came to judicial nominations.

"These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process in the past and constrained each and every senator in his chamber from making sure that they are voting on the basis of their conscience," he said.

That former senator was Barack Obama, who then turned around and voted with those liberal advocacy groups in opposing the Roberts nomination. He was just one of 22 senators (all Democrats) to vote no. For a politician with national aspirations, the vote made perfect political sense. But it also seemed to contradict much of what Obama the politician had projected in his then-brief time on the national stage, which was a call to bring the country together, to diminish polarization, to dampen rampant partisanship.

Not that Obama agreed with Roberts philosophically. It was obvious that they looked at the world from different perspectives. But as Obama said at the time, Roberts had the qualities of intellect, experience and temperament to qualify him for the court. Obama said he opposed Roberts "with considerable reticence." He explained his vote by saying he feared that Roberts too often would side with the strong over the weak, that he was too dismissive of those pressing to eradicate racial discrimination or gender bias.

If elections matter -- and Obama has made clear as president to Republicans that he believes they do -- then was Obama simply succumbing to the power of the liberal interest groups? And if he was, was he not contributing to the kind of polarized court battles that he explicitly condemned?

Now as president he has the opportunity both to affect the court and the confirmation process. When he spoke Friday, Obama offered some clues to his thinking about a nominee but little about the process. He said he wanted someone with "a sharp and independent mind and a record of excellence and integrity." He also said he will look for someone with empathy, who understood the struggles of all kinds of people and how the court's decisions affect their daily lives.

John Podesta, who helped organize the transition for Obama, said he believes that "argues for someone who's going to be mainstream, moderate in their orientation." His hope, he said, is that Republicans will, after a rigorous confirmation hearing, strongly support Obama's choice, though he said he doubted that would be the case, particularly the outside groups.

Republicans are wary of the criteria that Obama may apply. The "empathy" test, said, Sen. Lindsey O. Graham (R-S.C.) is "a dangerous road to go down." What about empathy "for the unborn"? he wondered. Graham thinks Obama would take back his vote on Roberts, had he another chance to consider it, saying, "I hope the Senate will treat his nominees better than he treated Bush's when he was in the Senate."

Kenneth Duberstein, the former Reagan White House chief of staff who helped guide Souter's nomination through the Senate for President George H.W. Bush, wondered how well Obama will, in the end, be able to resist the "pulls and tugs" of the liberal constituency groups. "With Supreme Court nominations, it's very difficult to have a do-over. You've got to get it right the first time."

That is why so much is at stake for Obama as he weighs this decision.

By Post Editor  |  May 2, 2009; 4:25 PM ET
Categories:  Dan Balz's Take  
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Make no bones about this-- confirmation on whomever the President selects will amount in some form to poltical 'theater." But given his background as a Constitutional lawyer and his "reach" for what is needed on the bench at this time, I see him selecting the best that can be found in woman some where. But I could be wrong. See my take

Posted by: Victoria5 | May 4, 2009 10:29 PM | Report abuse

"Justice" and "opportunity" are not what I hope Obama fails at.

Posted by: JakeD | May 4, 2009 7:44 PM | Report abuse

Don't you just love it when you think Obama might fail in his efforts to do what we elected him to do, which is to help us restore justice and opportunity to those who work for it?

Posted by: rooster54 | May 4, 2009 6:23 PM | Report abuse

Forget about the confirmation battle. Obama has his hands full with "no newspaper bailout" and "DEMS refusing to fund Gitmo relocation plan":

Posted by: JakeD | May 4, 2009 5:21 PM | Report abuse

Republicans are pro-death to pretty much everything but unborn fetuses.

Libertarian minus liberty = Republican Party.
Talban + clown clothes = Republican Party.

Posted by: rooster54 | May 4, 2009 3:49 PM | Report abuse

Obama's opposition to Robert's confirmation could explain why Roberts sabotaged Obama'a swearing in.

Posted by: rooster54 | May 4, 2009 2:10 PM | Report abuse

routse = routes?

Posted by: JakeD | May 4, 2009 2:10 PM | Report abuse

Republican opposition would melt to any pro-life nominee.

Posted by: JakeD | May 4, 2009 12:56 PM | Report abuse

There is no "defusing conflict." Republican opposition to any nominee is certain, predictable, and thus irrelevant.

Posted by: nodebris | May 4, 2009 12:21 PM | Report abuse

given the age of the entire court, shouldn't the president be looking at the possibility of replacing several justices over the next few years?
if that is the case, shouldn't he be considering the types of cases the court will be looking at over the next generation and assemble nominees with expertise in those areas?
so in addition to constitutional law, how about looking at folks with experience in- international business and trade agreements? tort reform? medical research ethics? veterans issues? environmental and energy concerns? banking and finance law? war crimes?
how about considering a few professors of constitutional law? there must be at least a few tucked away at some of our prestigious schools of law.
i certainly don't know what's ahead for the court, however, i'm sure there are plenty of folks in washington who could find out without a whole lot of effort.
issues that i hope do not enter the process are - race, gender, political party and religious orientation.

Posted by: boblesch | May 4, 2009 9:39 AM | Report abuse

The only way the republican'ts will agree to Obama's choice will be for the person to be in their later years. Anyone else will have to be strictly in their favor. Specter's opinion should be the last to be considered if Obama even considers it at all.

Posted by: kimkimminni1 | May 4, 2009 9:02 AM | Report abuse

I lived along the beltway for over 25 years so I know the way you guys at the Post think. Believe me, out here in the hinterland the thinking about your Messiah Obama is different. Despite all of your propaganda and protection of and for this guy, we know that, deep down in his heart, this guy is a true Marxist. So, naturally, his chance at the Supreme Court he will follow suit and pick a Marxist, Socialist, Arch-Leftist, or some sort of hater of the Constitution.

Posted by: walterndebby | May 4, 2009 8:50 AM | Report abuse

Speaking of matters of constitutional law...




Can't seem to access, or post to, certain web sites -- especially, political sites?

Do cookie "blocks" show up in your "preferences" list, even though you didn't request a block, thus preventing you from access?

Are the functions of your computer "hijacked" by third-party remote computing software? Are you blocked from making posts to certain web sites, receiving messages like "you must be logged on to leave a comment" when the screen shows you've already logged on?

When you post, do typos, spelling errors and other anomalies appear in your comments -- even though you carefully proofread the submission?

You could be the unwitting victim of government "fusion centers" that apparently are using internet "filtering" and remote computing software to censor and maliciously tamper with the telecommunications of American citizens.

Please see this running account of an apparently "targeted" journalist and his quest to exercise his First Amendment right of free speech, and his Fourth Amendment right to be free from unreasonable searches and seizures of telecommunications.

Then demand that American Civil Liberties Union renew its fight against warrantless government spying by filing a class-action suit against unconstitutional interference with personal and business telecommunications.

Recently, while reading the ACLU blog, this reporter learned of the Bush-Cheney "doctrine" of "ideological exclusion" -- apparently used to bar political "activists" from abroad from visiting the United States.

Could authoritarian bureaucrats be using this doctrine as a justification to censor political speech in this country?

If you suspect the answer is "yes," please add your account to the free speech thread cited above!

OR (if links are corrupted / disabled):

Posted by: scrivener50 | May 4, 2009 1:02 AM | Report abuse

By the way Dan...grow some balz!...this column is ridiculously transparent!

Posted by: wagonjak1 | May 3, 2009 2:16 PM | Report abuse

I agree with those here that implore Obama not to listen to the bloviating concern trolls in the media who fear Obama will be too "divisive" and pick someone from the "far left" to replace Souter...

After three of the most rabid right-wing Corporatist Judges...Clarence Thomas, Scalia and Roberts, I hope O has the courage to push for a strong liberal nominee for the SC.

What is it about bashing those "far left liberals" that seems to be obligatory not only for all Republicans, but most Democratic politicians?

The progressive wing of the Democratic party represents the thinking of almost 70% of the American public...does that make them too liberal? We have been right about the Iraq occupation, the financial meltdown, and the erosions of liberties here in the US...does this make us dangerous?

When are the Dem leaders going to shake off their inability to stand up to the Republicans and just tell them enough is enough?

As long as "fightin'" Harry Reid is head of the Senate, the Dems sadly will continue to be the "minority" majority party. And as long as enablers like Evan Bayh and Ben Nelson are allowed to go blithly their own way, the Dems will never control the levers of power that they are entitled to!

Posted by: wagonjak1 | May 3, 2009 2:10 PM | Report abuse

Since the obstructionists in the pathetic GOP will likely oppose whatever justice President Obama picks, I hope he sticks it too them good and nominates a flaming liberal. He tried to work with these idiot nay Sayers and what did it get him? Three votes on the stimulus package and ZERO on the budget. Screw the GOP, they care about politics more than policy. I hope the President bends them over and gives them a buggering worse than Arlen Specter did.

Posted by: russ_broadway | May 2, 2009 6:58 PM | Report abuse

After Alito, John Roberts, Torture crimes, war crimes, warrantless domestic spying and wholesale destruction of our moral character and values, violation of all our basic rights and constitution, OBAMA NEED NOT CONSIDER STEPPING ON ANYONE'S TOES.

In simple language, it is almost a crime to ask Obama to aviod conflict while choosing a match for Alito, Thomas and Scalia. These people are co-conspirators of the shredding of our constitution during the last 8 years. We do not need an amature to undo the damages done to our nation and our 3rd arm of our government.

We need someone that can restore the judicial independence and integrity that was eroded during the Bush term, someone that can keep politics out of the courts and rule for the American people and for the constitution. Bush appointees have been unforgivingly disgraceful from Ferderal courts to the Supreme courts.

Remember Jay Bybee, Alito, John Roberts and numerous other extemists in our courts.

Posted by: dressypink | May 2, 2009 6:18 PM | Report abuse

Pretty hard for anyone to argue against "empathy"

Posted by: JRM2 | May 2, 2009 5:02 PM | Report abuse

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