What a difference a year makes. On May 1, 2009, President Obama announced the retirement of Supreme Court Justice David Souter. Mr. Obama’s job approval stood at 65 percent in the Gallup poll. His nominee, Sonia Sotomayor, was confirmed by the Senate 68-31.
Now Obama has another Supreme Court vacancy to fill with the retirement announcement Friday of Justice John Paul Stevens, and Gallup has the president at 49 percent. Obama has just used up a lot of political capital passing healthcare reform, and his increasingly unpopular Democratic Party is heading into difficult midterm elections.
How this nomination process goes will of course depend heavily on who Obama selects. Someone with impeccable credentials and no major controversies could expect confirmation in a Senate where the Democrats still have a 59-41 majority. But atmospherics do matter, especially at a time of sharp partisan differences.
Still, presidents usually get their way on Supreme Court nominations. The last high court nominee to be voted down in a full Senate vote was Judge Robert Bork in 1987. Two subsequent nominees, Douglas Ginsburg and Harriet Miers, withdrew their names from consideration before any votes were taken, but all other nominees have been confirmed since Judge Bork went down.
Lessons learned from Bork
In part, that is a result of the lessons learned in the Bork case. Opponents went after him for his conservative views practically within minutes of his selection, and he never recovered. Now, nominees are ultra-cautious, bordering on inscrutable, in their confirmation hearings, leaving senators with less to go on than they did back when nominees spoke freely.
“In this case, it’s very much an inside game,” says Mr. Jillson. “There are vast coalitions who will favor and oppose whoever he nominates. There will be a lot of noise and a lot of dust in the air. But the question is where you get the votes.”
Even before Obama gets to the confirmation question, he faces the issue of whom to select. And the politics there are fierce.
Last year, by nominating then-Judge Sotomayor, he effectively checked off two boxes – a Hispanic and a woman. Obama was under intense pressure to name the court’s first Hispanic justice, and by finding a qualified woman, he addressed another imbalance. The retirement of Justice Sandra Day O’Connor in 2006 had left Justice Ruth Bader Ginsburg as the only woman on the court.
Ethnic and gender considerations
This time around, he could face pressure to name the high court’s first Asian. Korean-American Harold Koh, legal adviser of the State Department and former dean of Yale University law school, comes up as potential nominee. A Taiwanese-American, Goodwin Liu, was recently nominated to the US Court of Appeals for the Ninth Circuit, but Republicans have criticized him for his liberal views. His confirmation process is being seen as a test case for Obama’s judicial picks, particularly someone conservatives see as an eventual possible Supreme Court choice.
For now, the most mentioned names belong to women. The top two are Solicitor General Elena Kagan and federal appellate Judge Diane Wood. Whether Obama feels the nine-member Supreme Court needs another woman to join the two already there remains an open question. Another oft-mentioned name, Merrick Garland, is a judge on the US Court of Appeals for the DC Circuit – and a white male.
But Friday was Justice Stevens’ day. After months of speculation, the longest-serving justice finally settled the retirement question by delivering a letter to the White House expressing his intent to retire at the end of this term, which ends in late June or early July.
Speaking Friday afternoon from the Rose Garden, Obama praised Stevens’ service.
“Justice Stevens has courageously served his country from the moment he enlisted the day before Pearl Harbor to his long and distinguished tenure on the Supreme Court,” the president said.
“During that tenure, he has stood as an impartial guardian of the law,” Obama said. “He has worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint. He will soon turn 90 this month, but he leaves his position at the top of his game. His leadership will be sorely missed, and I just had an opportunity to speak with him and told him on behalf of a grateful nation, that I thanked him for his service.”