GOP Weighs Strategy On Next High Court Nominee

There's a debate going on in the Republican Party whether voting "no" — as it unanimously did on the health care bill — is the strategy that will bring it success in November.

It is simplistic, of course, to define the GOP as the Party of No. But opposing President Obama's agenda, often with few defections, seems to be boosting the Republicans as they seek to shrink — if not eliminate altogether — the Democrats' control of Congress.

Now comes another hot-button issue on the Senate's plate: confirming Obama's choice of a successor to retiring Supreme Court Justice John Paul Stevens. As I wrote last week, it's not that the ideological balance of the court is at stake here; Stevens is a leader of the liberal wing and is expected to be replaced by someone with similar views.

But the Republicans will have to decide whether they want to fight the nominee, going so far as to threaten a filibuster if necessary, or abide by the maxim that "elections matter" and give Obama his way. The latter course was taken by the GOP in 1993, when President Clinton nominated a liberal to the court, Ruth Bader Ginsburg, and the Senate vote to confirm was an overwhelming 96-3. (The following year, Clinton's choice of Stephen Breyer for another vacancy won confirmation by a 87-9 vote.)

But then came President Bush and his Supreme Court nominees. Twenty-two Democrats voted against John Roberts in 2005 and 46 Democrats voted against Samuel Alito the following year. Republicans charged that Democrats were applying an ideological litmus test; Democrats in turn said that Bush was naming unacceptable rightwingers.

And so, when Obama picked Sonia Sotomayor to fill a court vacancy last year, 31 Republicans voted no.

Now comes the battle to replace Stevens. By all accounts, the three favorites are Solicitor General Elena Kagan and federal judges Diane Wood and Merrick Garland. Also on the list, assuming there's a list, are Homeland Security Secretary (and former Arizona governor) Janet Napolitano and Michigan Gov. Jennifer Granholm.

For now, Republicans seem to be leaning against a filibuster. On the Sunday talk-show gabfests, Sen. Jon Kyl of Arizona called a filibuster "unlikely" on ABC's "This Week," and Tennessee Sen. Lamar Alexander said on "Fox News Sunday" he believes a qualified nominee should get an up-or-down vote. But, as reported by the Washington Post's Matthew DeLong, Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, "said that whether the GOP filibusters Obama's eventual nominee is up to the president. Echoing his Republican colleagues, Sessions warned that if the pick does not fall within the mainstream, 'every power should be utilized to protect the Constitution.'"

For the record, Obama, as a senator, voted to filibuster the Alito nomination.

The president also has a decision to make. Will he, in the wake of his health care victory, feel emboldened to name a strong liberal? He will have to decide whether this would ignite a GOP/Tea Party revolt, while at the same time calculating whether the right will fight him no matter whom he chooses. And if he decides that's the case, then all bets are off. The alternative, of course, is that with an election on the horizon, will he go the safe route? (Of the three top choices, Garland is considered the safest pick; Wood, who has a voluminous paper trail on abortion, would be one that could lead to a protracted battle.)

An interesting column in Saturday's Washington Post by Ruth Marcus, who makes the case that no matter who is chosen, Obama "could well end his first term with a more conservative Supreme Court than the one he inherited." Indeed, Stevens himself has said that "including myself, every judge who's been appointed to the court" since 1971 — with the exception of Ginsburg — "has been more conservative than his or her predecessor."

I probably agree with this, with the possible exception of when David Souter was nominated in 1990; in that case, I don't think there was an ideological change.

Here's the record:

1971: Lewis Powell, a centrist (nominated by Nixon) — replaced Hugo Black, a liberal.
1972: William Rehnquist, a conservative (Nixon) — replaced John Harlan, a centrist.
1975: John Paul Stevens, a liberal (Ford) — replaced William O. Douglas, more liberal than Stevens.
1981: Sandra Day O'Connor, a centrist (Reagan) — replaced Potter Stewart, probably more liberal than O'Connor.
1986: Rehnquist (for Chief Justice) (Reagan) — replaced Warren Burger, less conservative than Rehnquist.
1986: Antonin Scalia, a conservative (Reagan) — replaced Rehnquist, who had become Chief Justice, and who is less conservative than Scalia.
1988: Anthony Kennedy, a moderate-conservative (Reagan) — replaced Powell, a centrist.
1990: David Souter, a liberal (Bush I) — replaced William Brennan, a liberal.
1991: Clarence Thomas, a conservative (Bush I) — replaced Thurgood Marshall, a liberal.
1993: Ruth Bader Ginsburg, a liberal (Clinton) — replaced Byron White, a moderate-conservative.
1994: Stephen Breyer, a moderate-liberal (Clinton) — replaced Harry Blackmun, maybe slightly more liberal than Breyer.
2005: John Roberts, a conservative (for Chief Justice) (Bush II) — replaced Rehnquist, perhaps nominally less conservative than Roberts.
2006: Samuel Alito, a conservative (Bush II) — replaced O'Connor, a centrist.
2009: Sonia Sotomayor, a liberal (Obama) — replaced Souter, perhaps more liberal than Sotomayor.

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