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White House Cheat Sheet: Souter Retirement (Further) Roils Political Landscape

The news that Supreme Court Justice David Souter is planning to retire as early as next month is likely to set off a massive campaign-style fight over the man or woman that President Obama nominates to fill the vacant slot on the bench, and could well sidetrack other legislative priorities of the administration.

The Souter vacancy lands amid one of the most crowded political environments in modern history with Obama seeking to stimulate the economy out of recession, restructure the American auto industry, draw down American troops in Iraq while ramping up in Afghanistan, reshape how the United States is viewed by the international community and begin preparations for coming congressional debates over health care and the capping of carbon emissions in the fall.

Add a Supreme Court opening to that mix and it''s easy to see why even the Obama administration's vaunted ability to deal with a number of major challenges all at once will be severely tested.

"The White House team may feel burned out after two years on the campaign trail and then a grueling transition and first 100 days, but it is exactly that type of campaign metabolism that's required to execute a successful Supreme Court confirmation effort," said Kevin Madden, a senior aide to former Massachusetts governor Mitt Romney's (R) presidential campaign and now a Republican consultant. "It has all of the elements of a campaign: message coordination, rapid response, research, coalition building and grassroots organizing."

The two most recent Supreme Court vacancies, both of which occurred during the presidency of George W. Bush, provide a blueprint and a cautionary tale for Obama.

The first nomination -- of John Roberts to replace retiring Justice Sandra Day O'Connor -- was a model of efficiency. Bush deputized Steve Schmidt and Ed Gillespie, veterans of the 2004 reelection campaign, to run Roberts's confirmation, and tasked former Tennessee senator Fred Thompson to serve as Roberts's "sherpa" -- helping to facilitate meetings with senators and ensure those meetings went smoothly.

The resultant public relations campaign cast Roberts as an uber-qualified achiever who had spent his entire life preparing for the post to which he had been nominated. Roberts was confirmed -- ultimately as the Court's chief justice following William Rehnquist's death -- with a solid 78 votes.

Perhaps lulled into a sense of false security by the ease of Roberts's confirmation -- always a dangerous emotional state in campaigns -- the Bush administration faltered badly when it nominated White House counsel Harriet Miers to the bench to fill a second opening. Roughly three weeks after she was nominated, Miers had withdrawn -- brought low by doubts among grassroots conservatives and commentators regarding her conservative bona fides.

Which path will Obama's eventual nominee take?

It's hard to know but the massive grassroots army built by Obama during the campaign -- 13 million email addresses! -- and carefully maintained by Organizing for America since then is a huge advantage for the president as he prepares to sell the country on his nominee.

Obama and his political team have --literally at their fingertips -- a list of (mostly) willing footsoldiers, the sort of intact organization that can be directly overlaid onto a Supreme Court fight. While it's unlikely that all 13 million people on the Obama email list will volunteer to help in the nomination fight, even 10 percent participation would give the White House a major leg up over the groups who will undoubtedly oppose the pick.

Obama will also likely benefit from the current morass in which the Republican party finds itself -- without an obvious leader to build the sort of campaign machine needed to counter the Obama message efforts. "If you view this news about Souter as the official start of the fight, we technically have to consider ourselves a day behind schedule already," said Madden.

The Souter retirement sets the table for what could be one of the most anticipated -- and important -- fall congressional sessions in recent memory. Much hangs in the balance.

What to Watch For:

Friday's Fix Picks: Clear Eyes, Full Hearts...

1. Chrysler files for bankruptcy, merges with Fiat.
2. The 2008 electorate was the most diverse in history.
3. Rep. Joe Sestak isn't backing down (yet) from a primary challenge to new Democrat Arlen Specter.
4. Bill Richardson's polls lag.
5. Barbie now comes with lower back tattoo. The world is officially ending.

Bunning -- Out?: The news that Kentucky Secretary of State Trey Grayson (R) has formed an exploratory committee to begin raising money for a Senate race in 2010 is the clearest sign yet that Sen. Jim Bunning (R) is headed to retirement. It was not entirely clear whether Bunning had formally blessed Grayson's move but, regardless, the decision by a prominent elected GOP official to step into the Senate race likely ends any thought of Bunning seeking reelection next November. "I don't see how he can continue," said one close confidante of the senator. Bunning has publicly feuded with Senate Minority Leader Mitch McConnell (Ky.) and National Republican Senatorial Committee Chairman John Cornyn (Texas) -- both of whom have privately urged him to retire -- and struggled to raise the kind of money necessary to run a top-tier race. Two prominent Democrats -- Lt. Gov. Dan Mongiardo and state Attorney General Jack Conway -- are running and, despite Bunning's retirement, this race is likely to remain a target for national Democrats. Make no mistake, however: This race was unwinnable with Bunning as the GOP nominee. Now Republicans may have a shot.

Democrats Go After Crist: The Democratic Senatorial Campaign Committee has launched an ad in Florida that hits Gov. Charlie Crist (R) on his alleged lack of commitment to his current office as he mulls a likely Senate campaign. The ad accuses Crist of "wanting to quit to go to Washington" in the face of a difficult budget situation in Florida. The ad is only running in the Tallahassee media market and, in truth, has a target audience of exactly one: Crist. The ad is clearly designed to stoke doubt in Crist's mind about what sort of campaign (a rough and tumble one) he would be in for if he decides to run for seat being vacated by Sen. Mel Martinez (R). The DSCC also moved around an Associated Press analysis on Thursday that argued, rightly, that Crist isn't a lock to be the next senator from Florida if he runs. Still, polling suggests Crist would start as a clear frontrunner in the GOP primary and the general election. And, for a politician who has an eye on challenging President Obama in 2012, the Senate might be the best place to get started on that campaign.

Tammy Haddad's Newest Venture: Longtime television producer -- and Fix friend -- Tammy Haddad is launching a new website designed to bring average Americans into the innermost of reporter sanctums: the White House briefing room. The website, known as the White House Correspondents Insider, will "get you as close as possible to the axis of the White House and the media," said Haddad in a release announcing the new site. Haddad and BizBash CEO David Adler are the co-founders of the venture and Bill Triplett, a former Variety reporter, will edit the site. Haddad plans full-court coverage of the activities surrounding next weekend's White House Correspondents Association Dinner including -- we assume -- her annual Saturday brunch.

Squeezing T-Paw: Americans United for Change, a liberal interest group, is funding a new ad in Minnesota that seeks to build public pressure on Minnesota Gov. Tim Pawlenty (R) to bring the contested Senate election to a close once the state Supreme Court rules. The ad is running in the Minneapolis-St. Paul and Rochester media market and will be a "five figure buy" according to an Americans United spokesman. The ad's narrator notes that a majority of Minnesotans believe Coleman should concede the race but adds that "Republican donors" don't want Democrat Al Franken to be seated. "Governor Pawlenty has a choice," says the ad's narrator. "Will he act in the best interest Minnesota or his own national political ambitions?" As we have written before, Pawlenty's role as the middle man (of sorts) in the Senate election presents him with opportunity and peril -- depending on how he handles it and whether he is angling to run for a third gubernatorial term in 2010 or for president in 2012. This ad frames that choice starkly.

Best iPhone Apps: Smart Dial, Speedtest, and Crazy Penguin Catapult.

Say What?: "I think he said something on TV differently than what he meant to say." --White House press secretary Robert Gibbs seeking to explain Vice President Joe Biden's comment on the "Today" show Thursday morning.

By Chris Cillizza  |  May 1, 2009; 12:04 AM ET
Categories:  Cheat Sheet Share This:  E-Mail | Technorati | Del.icio.us | Digg | Stumble Previous: Anita Dunn Heads to the White House
Next: Souter Retirement: Republican Opportunity or Uh-Oh?

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With the WaPo flat on it's butt.. you might want to hide the extent of you iPhone app addiction...

Posted by: newbeeboy | May 1, 2009 3:22 PM | Report abuse

as long as we don't get a Scalia clone

Posted by: TheBabeNemo | May 1, 2009 2:29 PM | Report abuse

In post below, that's TORTURE MATRIX.

Have those fusion center gremlins been inserting typos in the real-time internet monitoring "harassment protocol"?

Calling Janet Napolitano...

It's 2:21 p.m. Do YOU know what your fusion centers are REALLY up to? (Notably, in Newtown, PA.)


Posted by: scrivener50 | May 1, 2009 2:20 PM | Report abuse




The rest of this comment elicited the "held for blog owner" message, when Wa-Po does NOT "hold" posts unless foul language is detected.

For the rest of this apparently "fusion center"- censored communication, please read the last comment posted to the following ACLU link:


OR (if link is corrupted):


Posted by: scrivener50 | May 1, 2009 2:14 PM | Report abuse

I just want the President to choose somebody who's very smart (in fact, brilliant would be nice), thoughtful, and deliberate. No litmus test, and no interest-group-specific "identity" choice. Kind of like him, actually. That would work for me.

And who knows? He might pick a closet conservative, after all. The beauty and the drawback of Supreme Court Justices is, once they're in, they really can -- and do -- vote any way they want. Earl Warren sure surprised the hell out of President Eisenhower.

I can live with that, IF it's obvious that they are really thinking through what they're doing. I disagree almost all the time with Justice Scalia, but I have never doubted that there's a real brain working inside his head. If only I could say the same for Justice Clarence "Yeah, What Scalia Said" Thomas.

Sure, I'd like to see a liberal get in, a REAL liberal, not the so-called "liberals" the wingnuts keep whining about (to those fruitcakes, anybody to the left of Benito Mussolini qualifies as a "liberal".) Another Justice Douglas would be terrific, but I know that won't happen. Still, an American can dream.....

Posted by: WaitingForGodot | May 1, 2009 2:10 PM | Report abuse

white house correspondents insider
already in the favorites
i love it....

Rahm-a-tolla will visit.
(Hey Rahm, can I get you back))))

Posted by: TheBabeNemo | May 1, 2009 12:21 PM | Report abuse

First, as some of you including bhoomes have said, judicial nominations should be approved unless the nominee is unqualified. Eight of the current Justices are among the most qualified lawyers in America. Roberts should have been a unanimous vote "for".

Second, the Court is not generally molded by conventional politics. Activism, restraint, incrementalism, and minimalism describe the judicial temperaments, more fairly. Scalia is an outspoken activist [example: in the NW Austin argument he suggested to counsel that because the Senate passed VRA on a near unanimous vote the statute deserved LESS deference]. Roberts is an apparent minimalist, so far. O'Connor was the picture of incrementalism.

Politicians want activists on the court of their own persuasions hoping that the activists will shape the law to suit.

Lawyers generally want incrementalists who will allow the law to stay in touch with change but ever so slowly, so that the lawyers can predict for their clients what are likely outcomes.

Most cases are decided by unanimous or near - unanimous votes in the Supremes. Really. Votes tend to cleave wildly when there is fairly strong support in the law for differing conclusions. In those cases, it is fair to say that justices remember who they are, and will weigh the conflicts with an eye toward the future policy of the law in the area, as they would prefer.

I am a practicing lawyer in a field dominated by federal law. I hope the Prez nominates a smart, hard working, honest, incrementalist. I do not care if that person votes R or D in her/his private life. Neither should the Senate.

Posted by: mark_in_austin | May 1, 2009 12:00 PM | Report abuse

"The difference between liberal & conservatives, is that conservatives would never stoop so low as to literally dig through a nominees' trash(ala Clarence Thomas) hoping to find dirt. I am sure I will not like Obamas' nominee but he won the election and deseverses whoever he chooses. I would be against a filabuster even if we had the numbers. Libs pay attention and learn from us on how to behave in a dignified manner when you are the loyal opposition."

Now that is funny! I'm talking comedy gold!

Posted by: koolkat_1960 | May 1, 2009 11:54 AM | Report abuse

Poor Chris! How the ignorant rabble revile you for supplying the simple political truth. To all you Cillizza bashers out there: Talent doesn't require decades and decades of experience! Just like Obama, Chris can walk and chew gum at the same time!

Now, on to the nomination. Chris, don't you think that Obama, prepared for the inevitable, already has a list? Who are the 'rumoured' candidates as Souter replacement?

P.S. It was my understanding that Harriet Miers was withdrawn for her breathtaking lack of an impressive legal background--such a lack would have got her laughed off the court if she'd ever got on it in the first place. AND the 'on dit' was that it was the conservative RIGHT that got her nomination derailed, Dr. James Dobson of Focus on the Family-infamy leading the charge.

Posted by: sverigegrabb | May 1, 2009 11:51 AM | Report abuse

So Bunning may be out, wow! I know that Trey Grayson has said that he supports Bunning for reelection. Grayson is popular with the conservative base & general electorate in Ky. He won reelection in 2007 with over 57% of the vote for Secy. of state. Bunning obviously hates the senate leaders & hates where he is right now. If he retires, Bunning will likely endorse Grayson. This will bring the Ky. Republican party together and give them a great & tested nominee in Grayson. Mongiardo & Conway will likely have a very tough primary fight. While they fight it out, Grayson will cruise to the nomination, raising money for the general all the way with a united party. This is great news for Republicans if Bunning retires & endorses Grayson. At that point, Grayson is the front runner for the GOP nomination & for the general election.

Posted by: reason5 | May 1, 2009 11:35 AM | Report abuse

Ted Olson

Posted by: TheBabeNemo | May 1, 2009 11:26 AM | Report abuse

vbhoomes writes
"Will not be much of a fight, as conservatives have little chance of stopping it in the Senate."

I can't help but think the Senate Judiciary committee is also stacked in the Dem's favor - with Specter having switched, but no reassignments having been made.

Posted by: bsimon1 | May 1, 2009 11:24 AM | Report abuse

"Libs pay attention and learn from us on how to behave in a dignified manner when you are the loyal opposition."

Wait, really?

You call the way the GOP has acted for the last 100 days a "dignified manner?"

That's hilarious.

Posted by: VTDuffman | May 1, 2009 11:06 AM | Report abuse

"The difference between liberal & conservatives, is that conservatives would never stoop so low as to literally dig through a nominees' trash(ala Clarence Thomas) hoping to find dirt."

Keep telling yourself that.

Posted by: VTDuffman | May 1, 2009 11:05 AM | Report abuse

I'm not so certain this is a slam dunk. Yes, democrats now have 60 votes. Yes, Specter will vote for the Supreme Court nominee. Obama needs 60 votes. Will any Republicans vote for the nominee? Not likely! Specter would be the most likely, and now that he's a dem. it will easier for him. Snowe & Collins may vote for the nominee. Will any democrats vote against the nominee? Byrd, Rockerfeller & Ben Nelson likely will vote against the nominee. They are from conservative states and would likely not support the nominee. It's possible Obama may have trouble getting Conrad & Johnson on board as well. If the democrats can recruit Ben Nelson, Conrad, Byrd, Rockerfeller & Johnson to their side of this argument they could well hold this thing up. In my view, the keys to this nomination will likely be Ben Nelson, Byrd, Conrad, Johnson, Snowe, Collins & Rockerfeller.

Posted by: reason5 | May 1, 2009 10:51 AM | Report abuse

The Republicans will use the nomination as an opportunity to paint Democrats as socialist nazi marxist terrorist-lovers, but the vast majority of Americans will ignore them and they will be essentially irrelevant to the process.

The only potential for interesting conflict regarding the nomination will be between various Democratic interest groups.

Posted by: nodebris | May 1, 2009 10:47 AM | Report abuse

vbhoomes wrote: "The difference between liberal & conservatives, is that conservatives would never stoop so low as to literally dig through a nominees' trash(ala Clarence Thomas) hoping to find dirt."

Never heard of "The Arkansas Project," eh?

Posted by: nodebris | May 1, 2009 10:44 AM | Report abuse

The Franken camp has alleged, I believe, that the election contest could not end up at the US Supreme Court, as they do not have jurisdiction in what is essentially a state matter.

They could be wrong, but I have a feeling that there will still be a fair amount of wrangling about whether or not an appeal can even be made after the MN Supreme Court announces its ruling. Which, of course, means more delays, even before a potential SCOTUS hearing.

Posted by: JohninMpls | May 1, 2009 10:35 AM | Report abuse

I'm predicting a Noah's Ark thing, another AA or women. With the new 60-40 split it should be no more than a minor squabble. Also wanted to note Harriet Meirs was rejected by the social conservatives because she is a lesbian. Not that there is anything wrong with that but...

Posted by: angriestdogintheworld | May 1, 2009 9:49 AM | Report abuse

Choosing someone who has previously been elected to political office should be seriously considered. ................


Posted by: glclark4750 | May 1, 2009 9:29 AM | Report abuse

The difference between liberal & conservatives, is that conservatives would never stoop so low as to literally dig through a nominees' trash(ala Clarence Thomas) hoping to find dirt. I am sure I will not like Obamas' nominee but he won the election and deseverses whoever he chooses. I would be against a filabuster even if we had the numbers. Libs pay attention and learn from us on how to behave in a dignified manner when you are the loyal opposition.

Posted by: vbhoomes | May 1, 2009 8:34 AM | Report abuse

I don't think it was that Harriet Miers wasn't *conservative* enough but that she wasn't *qualified* enough.

I'm sure GWB thought she was the brilliantest lawyer gal he'd ever met, but I seem to recall there was a universal "wha?" after her nomination.

Posted by: margaretmeyers | May 1, 2009 8:28 AM | Report abuse

I suspect there will be more in-fighting amongst various factions of the democrat party, versus any real opposition by conservatives. First of all, history shows that conservatives have put up very little opposition to previous dem picks...they gave Bush more grief for the Harriet Miers pick! Second, this is a liberal pick to replace a liberal - what's the point of stirring up a debate? It'd be wasted energy, given Obama's 60 votes.

I suspect the real struggle for Obama will be whether it should be a black, a woman or a hispanic. He's going to tick off at least one group, which might make putting the rest of his agenda forward a bit tricky (quid pro quo being what it is).

I welcome this struggle.

Posted by: boosterprez | May 1, 2009 8:12 AM | Report abuse

Is this really good news for Obama? I don't think so. He gets a vicious fight to simply replace one liberal justice with another, distracting from his agenda ad potentially alienating some voter groups.


Posted by: parkerfl1 | May 1, 2009 7:49 AM | Report abuse

Judge Diane Wood is my choice.

Hook 'em, Horns!

Posted by: mark_in_austin | May 1, 2009 7:41 AM | Report abuse

You seem to think it is Obama and a few lonely staffers over at the White House. There is plenty of help available to handle the appointment of a judge. Unlike Bush, Obama has the bandwidth to multitask.

Posted by: cdierd1944 | May 1, 2009 7:17 AM | Report abuse

Will not be much of a fight, as conservatives have little chance of stopping it in the Senate. Best case scenario! Nominee turns out to be a closet moderate who sometimes votes with the conservative wing of the court. Its about time dems have their owns Stevens, Souter.

Posted by: vbhoomes | May 1, 2009 6:17 AM | Report abuse

"Cillizza is a journalism intern with too much space in the Post. Oh yeah, President Obama is facing a real "challenge" here, it's really a "test" can he handle it? Wooooo!!!"

I don't think the nomination in itself will be a test for Obama. The test will be to coordinate all of these things. The loyalty of the supermajority Senate will be tested. If you're a Senator from a reddish area, do you want to be seen as supporting Obama on the stimulus AND the bailouts AND the omnibus AND the budget AND Ledbetter AND his judicial nominations AND whatever energy bill comes up AND an upcoming health care bill?

That's one of the dangers of trying to do a lot at once. I'm sure the White House has the organizational prowess to deal with all these issues, but can he keep his coalition together, or failing that, pick off some Republicans?

THAT is the big test. Not the individual challenges, but the aggregation of challenges.

Posted by: DDAWD | May 1, 2009 5:11 AM | Report abuse

Honestly, and I'm going out on a limb here, I have a hard time taking the Harriet Miers nomination seriously. Bush's team knew that they hit a grand slam with Roberts, and they knew that with sagging popularity and the easy pass (justifiably so given his qualifications and excellent hearings) that Roberts got onto the court that Democrats would be out for blood on the next nominee. Miers seemed set up to fail...intentionally.

My hunch, and it is only idle speculation, is that Bush nominated Miers with the full knowledge that either conservatives would tear her down for not having enough of a track record or else liberals would with accusations of cronyism and lack of qualifications. Either way, Miers would stick it out for a few weeks, and then Bush could let the hubbub die down before nominating the person whom he really wanted. The debacle tossed Democrats the blood that they sought, gave the next pick, Alito, a somewhat easier path as a less objectionable choice than Miers, and also got Bush off the hook from appointing a woman.

Maybe all of this wasn't intentional as I suspect, but the effects were still the same. Bush was no longer compelled to choose a woman, and the Democrats had already savored one nominee failing and raised fewer barriers to Alito as a result. Whether intentional or accidental, the Miers debacle proved a boon for getting Alito onto the court.

But in Obama's case, how much of a fight does anyone really expect over the nominee? Unless the person has enough objectionable qualities to alienate every Republican, which still includes a few moderates who will likely support any qualified person, and to turn even a Democrat or two against the pick, Obama will enjoy a filibuster-proof vote in the Senate. Republicans may bluster and shout, but they will be able to offer very little fight if Obama's pick is at all decent.

But the assertion that Obama will have one more plate in the air to juggle is right. How many major policy issues, crises, and other big concerns does Obama need before something gets dropped, or at least slipped quietly out of the immediate plans? Does Obama really want to fight for a health care plan this summer while also working on a SCOTUS pick? Maybe Obama can handle it, but the news cycle only carries one lead story at a time, and multiple messages risk jumble and and leave openings for more focused attacks by Republicans.

It does surprise me that Souter stepped down first, though. I would have expected both Stevens and Ginsburg to leave first, but this almost guarantees two picks for Obama in his first term and opens the real possibility of a third. A huge question mark hangs over Ginsburg's health with her pancreatic cancer diagnosis this year, and Stevens is now 89, which is 13 years older than Ginsburg, the next oldest justice. It's hard to see either not hang up the robes within the next couple of years.

Posted by: blert | May 1, 2009 3:30 AM | Report abuse

Cillizza is a journalism intern with too much space in the Post. Oh yeah, President Obama is facing a real "challenge" here, it's really a "test" can he handle it? Wooooo!!!

Hey you moron, there is no "test" here- Democrats enjoy a majority because Americans got sick of GOP fearmongering, incompetence, and corruption.

Obama will appoint someone to counter the right wing loons: Scalia, Thomas, Alito, and Roberts.


Posted by: losthorizon10 | May 1, 2009 2:38 AM | Report abuse

Oh, and someone who believes in equal treatment under the law for ALL citizens, regardless of sexual orientation (i.e. gays should not be discriminated against when it comes to the right to get married).

Posted by: PeixeGato1 | May 1, 2009 2:25 AM | Report abuse

The economy will test the White House...

The flu epidemic a test for Obama...

Chrysler a test for the Administration...

Passing gas a test for the White House...


Posted by: mdsinc | May 1, 2009 1:56 AM | Report abuse

I'd love to see a 40 year old Latin American female Constitutional Law genius who is decidedly pro labor, pro choice, and pro consumer be nominated to the SCOTUS and watch the heads of the repubs explode as the vote to confirm is called on the Senate floor.

Posted by: PeixeGato1 | May 1, 2009 1:54 AM | Report abuse

fight? The democrats have basically a filibuster-proof majority. It's gonna be a liberal replacing another liberal.
President Obama can nominate a young liberal version of Scalia and get still 65 votes.
Sorry to disappoint you but this is slam dunk.

Posted by: sgtpepper23 | May 1, 2009 1:34 AM | Report abuse

What fight? By the time this comes to a vote, Specter and Franken will make any resistance moot.

Posted by: dolph924 | May 1, 2009 1:29 AM | Report abuse

What fight? By the time this comes to a vote, Specter and Franken will make any resistance moot.

Posted by: dolph924 | May 1, 2009 1:29 AM | Report abuse

Do I hear "Slick Willie's" name being considered???

Whoop's, he lost his law license because of the Monica thingy, didn't he???

Posted by: thgirbla | May 1, 2009 1:14 AM | Report abuse

What excellent timing.

This comes at a good time for Vice President Biden, after he accidentally said what everyone else is thinking on the Today show this morning, causing great and rather silly harrumphing. To my mind, Biden must be an absolutely extraordinary asset for any administration preparing for a Supreme Court nomination. He will shine.

It also comes at a timely moment following the recent transition of Arlen Specter to the Democratic ranks, since that means a filibuster is unlikely.


Posted by: fairfaxvoter | May 1, 2009 12:59 AM | Report abuse

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