When President Gerald Ford selected John Paul Stevens to serve on the Supreme Court more than 30 years ago, he “deliberately sought a non-partisan nominee with appeal across party lines,” notes Christopher Eisgruber, a former law clerk who worked for Stevens.
Now that Stevens on Friday announced his retirement as he nears age 90, he could provide a model for President Obama’s next nominee to the high court, although even Eisgruber admits that may be a tall order.
“Barack Obama has indicated a desire to appoint justices who diversify the Court and have bipartisan appeal,” explains Eisgruber. “However, in today’s polarized atmosphere, he will find that difficult to do.”
That’s especially true because even as the Democratic senator who will preside over the confirmation hearings of whomever Obama nominates to succeed Stevens was calling for those of both parties to engage in “process a thoughtful and civil discourse,” those on the Right were stoking confrontation.
“Since taking office President Obama has established a horrendous track record by nominating judges who have had little regard for the U.S. Constitution. Many of the names currently being discussed on President Obama’s ‘short list’ seem to share that same disregard,” says Tony Perkins, president of Family Research Council Action, a social conservative advocacy group.
Those names on the short list include Solicitor General Elena Kagan, and appeals judges Merrick Garland of Washington and Diane Wood of Chicago.
Judicial Watch specifically sought to incite the tea party activists, whose anger spilled over in a year-long battle over healthcare reform.
“If President Obama nominates an ’empathetic’ liberal judicial activist, he will have a fight on his hands,” says Tom Fitton, president of the conservative legal organization. “With looming constitutional challenges ranging from Obamacare to new rights for foreign terrorists, the United State Senate should ensure that only a justice who will strictly interpret the U.S. Constitution is approved. Given the stakes, every U.S. Senator should know that the upcoming Supreme Court vote will be as closely watched as their votes on Obamacare. Tea Party activists ought to be paying close attention to this nomination.”
GOP senators, including Leahy’s Republican counterpart on the Judiciary Committee, also appeared willing to oppose Obama and his nominee.
Sen. Jeff Sessions of Alabama, ranking Republican on the judiciary panel, specifically called out Obama for the president’s first Supreme Court last year, that of Sonia Sotomayor.
“We know from the nomination of Justice Sotomayor last spring that the public is rightly concerned about the future of our judiciary,” says Sessions. “The product of her confirmation hearing was a near-universal rejection of President Obama’s empathy standard, the flawed notion that judges should allow personal feelings, political opinions, and social views to guide judicial decision-making.
“Senators on both sides of the aisle—and the nominee herself—disavowed the president’s standard because it lies contrary to the traditional role of a judge in our legal system. Such an approach opens the door to an anti-democratic abuse of power where unaccountable federal judges set national policy according to their own views and political agendas,” Sessions adds. “That approach is deeply unpopular with the American people, and any nominee who subscribes to it should expect bipartisan opposition.”
While appealing to the conservative Republican base, such rhetoric carries risks for the GOP in an election year, however. A high-stakes fight over a Supreme Court nomination threatens to supplant healthcare as the banner issue going into November.
The election earlier this year of Sen. Scott Brown of Massachusetts as the Senate’41st Republican vote means the GOP has the power to filibuster Obama’s high-court pick. The question is whether they follow through on that power.
In a Fox News poll taken in the days just before Stevens announced his retirement, 52 percent say an Obama nominee should not be filibustered, but rather deserves an up-or-down vote. Just 26 percent in the poll felt Republicans should be able to block a confirmation vote.
Further, the high court’s Citizens United decision earlier this year — in which the court’s conservative bloc ruled that corporations could essentially spend whatever they want to influence elections — could well work against Republican opposition to an Obama pick.
An ABC News/Washington Post poll from February found 65 percent of Americans strongly opposed the Citizens United ruling. That same poll, meanwhile, found that even after months of healthcare debate a plurality of 37 percent say they know “very little” about what tea party activists stand for.
If, because of their ongoing hatred of Obama, conservatives and tea party activists publicly oppose a Supreme Court nominee this year who turns out to be popular then Republicans run the risk of showing themselves to voters as both wrong — and if they lose in November — not nearly as potent as they’ve made themselves out to be.
In other words, a fight over Obama’s nominee could well become the conservatives’ “Waterloo.”
The publisher of the news site On The Hill, Scott Nance has covered Congress and the federal government for more than a decade.