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For all we know, a case like that could end up in the Supreme Court, currently with eight justices. Here is a needle President Obama needs to thread if he chooses a ninth. The nominee would need to be so strongly qualified that he or she would be hard to reject. The person must also be willing to be nominated even though leading Senate Republicans have said they will not consider anyone the president names. NPR's Carrie Johnson reports on what is known about the vetting.
CARRIE JOHNSON, BYLINE: Aside from an image of President Obama carrying a thick binder full of materials, his staffers aren't saying much about who is on the shortlist, other than there is no real short list yet. But the reality is lawyers in the government have been preparing for years - keeping their eye on a pool of candidates, collecting every judicial opinion, reading every speech. Reg Brown worked in the George W. Bush White House, and he says if President Obama is able to name a third justice to the high court, it would change history.
REG BROWN: This may be the most momentous act of President Obama's presidency - certainly more significant than the passage of the Affordable Care Act.
JOHNSON: That's because the Obama administration may be able to replace the late Justice Antonin Scalia's reliable conservative vote with a more liberal one if the White House can break a logjam in the Republican-controlled Senate. Majority leader Mitch McConnell says the president shouldn't even bother to nominate someone, a point echoed in this new ad campaign by the conservative Judicial Crisis Network.
(SOUNDBITE OF POLITICAL AD)
UNIDENTIFIED WOMAN: You choose the next president. The next president chooses the next justice.
JOHNSON: The liberal group People for the American Way fired back with its own robocalls that feature actor Martin Sheen.
(SOUNDBITE OF ARCHIVED RECORDING)
MARTIN SHEEN: As you may have heard, Republicans are playing politics with our Constitution and with the Supreme Court.
JOHNSON: For its part, the Obama White House says the president has been making calls to Senators both Democrats and Republicans. Vetting is always important, but this time, now that Republicans run the Senate, any nominee's record will get extra scrutiny. Administration lawyers are studying potential nominees' life stories and their temperament.
CHRISTOPHER KANG: I think you want people who can advocate for a position very strongly and forcefully but also politely and sort of respectfully.
JOHNSON: Christopher Kang worked as a deputy White House counsel early in the Obama years. He says by this point, the administration has already done a lot of vetting on judges it put on lower courts.
KANG: What we're looking for is both how they approach the law, how they analyze it, whether or not they're successful in persuading their colleagues to join them in opinion.
JOHNSON: Eventually, after consulting with his White House counsel, his chief of staff and the vice president, the president will meet with a small number of finalists. Brown says those meetings usually remain secret.
BROWN: They're pretty clever about figuring out ways to get people into the White House for meetings with the president without being detected, or possibly even doing the meetings off-site.
JOHNSON: Often, the White House hires outsiders to help deal with the media onslaught and shepherd the nominee through the Senate - that is, if Republican leaders decide to hold a confirmation hearing at all. Carrie Johnson, NPR News, Washington.
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