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No surprises yet ahead of Supreme Court fight

By Ben Pershing
It's been close to 72 hours since John Paul Stevens announced his plans to retire from the Supreme Court. What have we learned? That a partisan fight is likely, but a filibuster isn't, and that President Obama's shortlist doesn't contain any surprises so far.

The New York Times writes, "The chairman of the Senate Judiciary Committee predicted on Sunday that the Senate would confirm a replacement for Justice John Paul Stevens this summer, but his Republican counterpart would not rule out the use of a filibuster if President Obama were to nominate someone who was 'clearly outside the mainstream.' ... The debate, which began when Justice Stevens announced on Friday that he would retire after 34 years on the court, is expected to be a dominant feature of the legislative session over the next several months. Asked about the timing of a nomination, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, said Sunday, 'I think we're going to hear it soon enough so we can wrap this up this summer.' He said there was 'no question' that a new justice would be in place before the start of the court's fall term." The Washington Post reports: "While calling each of the most commonly mentioned candidates to succeed Stevens 'nominally qualified,' Sen. Jon Kyl (R-Ariz.) would not take the filibuster off the table. But he said Sunday on ABC's 'This Week' that it is 'unlikely' Republicans will use the procedural move to block the nominee except under 'extraordinary circumstances.'"

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The same names are on most everyone's list of candidates. The Wall Street Journal writes that "White House officials are believed to be working off a shortlist of possible nominees, which includes Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and two federal appeals court judges, Diane Wood and Merrick Garland." Jake Tapper says "[f]ormer Georgia Supreme Court chief justice Leah Ward Sears is also on the short list, a senior White House official tells ABC News.‬‪ Sears, who will turn 55 in June, was the first female African-American chief justice in US history, and when nominated for the state supreme court by then-Gov. Zell Miller in 1992, she became the first woman and the youngest person to ever sit on the court.‬‪ She stepped down from the court last year and currently practices law at Schiff Hardin.‬‪"

Stuart Taylor thinks "[m]any Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee as an ultra-liberal eager to push the Court to the left, legislate from the bench, impose gay marriage by judicial decree, strip "under God" from the Pledge of Allegiance, invent welfare rights, require government-funded abortions, and free terrorists. But, in fact, none -- or at most one -- of the four brainy and well-qualified public servants at the top of the shortlists that have made their way into the media from inside sources seems likely to move the Court left. None of the four is clearly more liberal than Stevens, who is in turn a lot less liberal than, say, the late Justices William Brennan or Thurgood Marshall."

The Journal takes a separate look at Kagan, noting that "conservative activists are homing in on a high-profile stand she took on gay rights as a centerpiece of their opposition, if she gets the nod. While other oft-mentioned contenders to succeed Justice John Paul Stevens--who announced he will be retiring from the court this summer--are federal judges with dozens of published opinions to dissect, Ms. Kagan hasn't served as a judge. Her academic career, most recently as dean of Harvard Law School, has focused on less controversial legal questions. ... Such an unprovocative past has given pause to some liberal activists, who long to see a vibrant progressive voice join the Supreme Court. But some conservatives fear that once on the court, Ms. Kagan could emerge as heir to the liberal icon for whom she once clerked, Justice Thurgood Marshall, himself a former solicitor general."

Orin Kerr writes sarcastically: "No matter who he picks, his selection is likely to break down some major barriers. First, consider the broad range of choices Obama faces. His shortlist consists of former law clerks to a wide range of the liberal Justices of the 1970s and 1980s. Obama must choose between a Brennan clerk (Garland), a Marshall clerk (Kagan), and a Blackmun clerk (Wood). Further, the shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)? Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices."

Dahlia Lithwick examines Stevens' legacy: "[W]hen President Obama on Friday listed the qualities he would seek in replacing Justice John Paul Stevens at the court, the word 'empathy' was gone from the list. Thus we can witness the rise and fall of the E word in American judicial discourse. That's too bad. Because if John Paul Stevens's career stood for anything, it's the proposition that walking a few miles in the other guy's moccasins will always make you a better judge. As Americans now begin the ritual clamor for a court that looks more like them--for more racial, gender, and ethnic diversity at the court--it's worth taking a moment to recognize that often more than anyone else at the court, it was an 89-year-old white Protestant guy who devoted his judicial career to standing in the shoes of teenage schoolgirls, pregnant women, gay Boy Scout leaders, and poor African-Americans. ... Empathy isn't emotional incontinence and it isn't fudging the law to help the little guy. Empathy is the power to imagine a world outside your experience, and to map that understanding onto the law. It's too bad it has become a dirty word. It sums up the very best qualities of Justice Stevens."

While the confirmation battle is weeks away, Washington news this week will be dominated by the nuclear security summit. The Associated Press ledes: "President Barack Obama and presidents, prime ministers and other top officials from 47 countries start work Monday on a battle plan to keep nuclear weapons out of terrorist hands. Confronting what he calls the 'single biggest threat to U.S. security,' Obama is looking for global help in his goal of ensuring all nuclear materials worldwide are secured from theft or diversion within four years." Politico says "Obama embarks this week on the most elaborate diplomatic undertaking of his presidency. ... The gathering of high-level delegations ... at the call of an American president is almost without precedent, White House officials said. They say the last such meeting was the 1945 conference President Harry Truman hosted in San Francisco that led to the organization of the United Nations."

The Washington Post writes, "Even as President Obama met Sunday with a succession of global leaders to discuss better control of nuclear materials, his administration highlighted a seemingly dissimilar message: The U.S. nuclear arsenal remains as strong as ever. While Obama entertained foreign leaders at Blair House ... Defense Secretary Robert M. Gates and Secretary of State Hillary Rodham Clinton gave interviews meant to reassert the nation's military strength. They indicated that the United States would spend $5 billion this year to modernize its existing nuclear weapons, which they said could be used if the country's security is in danger or in response to the threat of a biological attack." The Wall Street Journal says "Obama demonstrated ahead of a two-day nuclear-security summit that starts Monday how much he would bend on issues like human rights to advance nuclear controls that have climbed to the top of his foreign-policy agenda. ... His first day of meetings included a one-on-one session with Nursultan Nazarbayev, who has ruled Kazakstan, a former Soviet republic, since just before the collapse of the Soviet Union in 1991. Human-rights activists have criticized Mr. Nazarbayev for corruption and repression, but he has been praised by Obama administration officials for voluntarily giving up the massive nuclear arsenal left behind in the 1990s by the receding Soviet empire."

The New York Times focuses on an omission: "But for all its symbolism and ceremony, this meeting has quite limited goals: seeking ways to better secure existing supplies of bomb-usable plutonium and highly enriched uranium. The problem that India and Pakistan represent, though, is deliberately not on the agenda. ... According to a senior American official, Mr. Obama used his private meeting Sunday afternoon with Yousaf Raza Gilani, Pakistan's newly empowered prime minister, to 'express disappointment' that Pakistan is blocking the opening of negotiations on a treaty that would halt production of new nuclear material around the world." The Los Angeles Times reports that "foreign diplomats involved in the discussions said U.S. officials had focused on areas of common ground and airbrushed differences while they wrote a joint communique that was mostly completed days before the summit even began. The statement was to be released Tuesday afternoon. The meeting 'is going to give a new visibility to an issue that hasn't gotten enough attention. It will push people to do more,' said one diplomat close to the talks. But in an attempt to persuade countries to take new steps, such as developing standards for physical security, he said, the administration has sidestepped many touchy issues."

Bloomberg covers a key subplot: "U.S. President Barack Obama and Chinese President Hu Jintao will seek to narrow differences over currency, trade and Iran in a meeting that may overshadow the event that brings Hu to Washington: a summit of world leaders on containing the spread of nuclear material. Obama's session with Hu today may be the most important among the individual meetings the U.S. president holds before the official opening of the two-day international gathering." James Carafano compares Obama unfavorably to one of his predecessors: "President Obama wants a world without nuclear weapons. So did President Reagan. The similarities end there. How we get to a nuke-free world matters. To mitigate the threat of nuclear war, treaty negotiators must understand what they are up against. That includes understanding how the other parties plan to use nukes, both as military assets and as foreign policy tools. Reagan knew that. But it's not clear that Obama's negotiators appreciate Moscow's evident intent to keep using its potent nuclear threat to advance its foreign policy interests."

Health reform also remains in the headlines. AP writes: "The nation may be divided over the wisdom of President Barack Obama's big new health care law, but it largely delivers on more than 30 specific promises he made as a candidate. Americans basically got what the majority voted for when they elected Obama in 2008, although many people today might not realize there are costs as well as benefits in the health plan's fine print. ... Obama's effort to deliver doesn't seem to be helping him with the public. Polls show the public is split over the law, and those who don't like it hold stronger opinions. That's a worry for Democratic lawmakers running for re-election this fall. ... One promise that Obama broke -- and one that many doubt he ever will fulfill -- may help to explain the unease. Most of the tax increases in the bill fall on upper-income earners. But middle-class households will bear some. It's a broken promise from a president who gave broad assurance he would not raise taxes of any kind on families making less than $250,000."

USA Today reports that "doctors have long been rewarded for providing more care, though more isn't always better. Three recent studies show that a doctor's instincts are no match for hard science." The paper uses Obama's own recent physical as its main anecdote, noting that the president got a coronary CT scan and a virtual colonoscopy that "aren't recommended for men of Obama's age and medical history." Time also looks at the spending problem: "Congress has overhauled the industry, but the revolution has largely been about increasing access to health care, not simplifying it. We are left with the same opaque system of perverse incentives--paying providers for more tests and procedures, not necessarily effective ones. And we lack even the most basic element of the free market: price information. I recently went to a doctor and asked how much my office visit and X-ray would cost. Staffers told me that they didn't know and, since I have insurance, I shouldn't care. I should care, though. In fact, I do. There are many reasons health care costs are spiraling out of control, but the simplest one to understand is this: nobody knows what anything costs."

By Ben Pershing  |  April 12, 2010; 8:07 AM ET
Categories:  44 The Obama Presidency , Supreme Court , The Rundown  | Tags: Supreme Court  
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I agree, President Obama should pick a Liberal Roberts or perhaps even Bork. Pick an experienced top liberal judge who has not been reversed excessively, and go for the gold. Elections are supposed to matter, so if its true that America elected some one as far left as the Right says President Obama is, then Democracy will only be served by a Judge from the far left.

Note I doubt seriously that far left Judge exists.

Posted by: Muddy_Buddy_2000 | April 12, 2010 12:14 PM | Report abuse

What right has the Republicans to tell President Obama who he should choose to be Supreme Court Justice! The Republicans already have six Republican Justices on the Supreme Court Bench. The Alliance for Justice analyzed Supreme Court decisions during the 2008-2009 year. It revealed the aggressive and unrelenting ultra-conservative activism of Chief Justice Roberts, and Justices Alito, Thomas, Scalia and Kennedy.

The Supreme Court under Roberts has reinterpreted Section 5 of the Voting Rights Act of 1965 to allow small jurisdictions to escape its requirements. The Section requires covered jurisdictions to preclear all voting changes with the Department of Justice.

Since 1971, Title VII of the Civil Rights Act of 1964 prohibits disparate impacts. The statute has been effective in desegregating police and fire departments. The Roberts Court has reinterpreted Title VII to make it easier to get rid of it next time round.
The intention of Roberts, Alito, Scalia, Thomas and Kennedy is to deny African-Americans their hard won rights and freedoms and re-establish school segregation and Jim Crow laws, especially in the Southern States.

Posted by: stephendelsol | April 12, 2010 10:35 AM | Report abuse

If the GOP will oppose anyone Obama nominates, then he should go for the gold. Nominate a liberal, one as far to the left as Robert, Scalia, Thomas, and Alito are to the right. And just as young (Thomas was 43 when nominated). Obama could truthfully defend such a choice by saying it would start to bring balance to the Court.

Further, Obama shouldn't worry about the conservative base getting fired up. They already are. He needs a nominee who will fire up HIS base. This

Goodwin Liu would be a great choice. He's liberal enough, smart, and younger than even Thomas. Or maybe Kathleen Sullivan. The right will oppose he because she's a lesbian. They will try to deny that, but won't be able to stop themselves from going after her for her sexual orientation. That would alienate themselves from moderates.

Posted by: Garak | April 12, 2010 9:28 AM | Report abuse

Gee, how much you wanna bet Obama nominates a Harvard Lawyer. He has loaded his cabinet and admin with TONS of useless IVY league lawyers. The worst of the worst are lawyers and union bosses. Seem slike Obama is beholding to Unions and slip n fall lawyers. i'd rather be on the side of small business and farmers and blue-collar workers. Obama gave up on these segments on day one of his socialist agenda.

Posted by: espnfan | April 12, 2010 9:12 AM | Report abuse

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