In perhaps the most telegraphed move in recent history, Justice John Paul Stevens announced his retirement today. So begins the next great Supreme Court nomination fight, which is sure to bring all the usual bells and whistles: Cable News shout fests over the fate of the constitution, direct mail pieces from pro-life and pro-choice groups begging donations to fight the good fight, and deep dumpster dives into the lost corners of recent legal thought in search of incriminating evidence on one nominee or another. Clearly both parties have an interests in riling up base voters in advance of the November elections, making this round potentially more explosive than the last.
But after you clear away the chaff and turn down the volume, it is unlikely that all this activity will amount to much. Almost any candidate President Obama picks is unlikely to face much challenge in the Senate, where Democrats control 59 seats and many Republicans are on the record opposing filibusters of judicial nominees on ideological grounds. Indeed, Republicans have never before used a filibuster to stop an up or down vote of a judicial nominee.
And yet, President Obama does not have an entirely free rein in picking Stevens’ replacement. This is an election year after all, and he must be mindful of doing his party political damage or expending his already-strained political capital on a bruising public fight. There is also the outstanding danger of defection within his own party that could sink a nominee. “At the end of the day, you need a couple of red state Democrats to oppose a person, either publicly or privately,” says Curt Levey, the director of the Committee For Justice, a conservative group that opposed the nomination of Sonia Sotomayor, Obama’s last appointment to the high court.
Are there nominees that might cause Obama problems among Senators like Nebraska’s Ben Nelson, or Arkansas’ Blanche Lincoln, who is tacking hard to the center to distinguish herself from her colleagues in Washington? It is too soon to tell, but Levey points to a couple of possibilities: Seventh Circuit Judge Diane Wood and Stanford Professor Pamela Karlan.
Though widely praised for her scholarship and ability to work across ideological lines, Wood is the sort of legal mind that conservatives scholars love to put in direct mail fliers. She has sided in cases in favor of striking down parental consent and partial birth abortion laws, written negatively about the state restrictions on gay marriage and spoken harshly against religious clubs that try to restrict gay membership. She has even weighed in, somewhat obliquely, on such hot button issues as the phrase “under god” in the Pledge of Allegiance. None of these things would necessarily prevent her nomination, but they would ensure that the debate over her nomination takes place on social issues, which is exactly where Republicans are most comfortable, and red state Democrats are least comfortable.
Pamela Karlan, a well-respected liberal scholar, could also be a controversial, bold and challenging nominee for Democrats. “Bold,” in fact, is a word she would likely embrace. In advance of the last nomination battle, Karlan said that Obama should take advantage of his approval ratings to make “a bold statement about what the Constitution means to him.” “I would just hate to see us squander this opportunity,” she continued. “I’d be really disappointed if we end up with a nominee up there who says things like when they ask, ‘What do you think about Brown v. Board?’ They say, ‘I’ve never discussed that case. … I’ve never thought about privacy. I’ve never thought about separation of powers. I’ve never thought about the First Amendment.’ Who wants to see more of that?”
Such rhetoric would likely raise expectations for nomination hearings, which have become in recent years rather rote affairs, where nominees hide their true views behind platitudes about the law and concerns about prejudging specific cases. Possibly complicating matters further for Karlan would be her support from gay and lesbian rights groups, who have in the past trumpeted her as first potential lesbian nominee. Unlike Wood, Karlan is not considered an obvious short-list candidate. She said she had little expectation of getting the nomination last year. “”Given the landscape, I’m flattered, but not fooled, by having my name tossed around,” she told Politico.
Other potential candidates, like Homeland Security Secretary Janet Napolitano, D.C. Circuit Judge Merrick Garland, Solicitor General Elena Kagan, present far less risk. Indeed, Napolitano and Kagan have already been Senate confirmed. But that does not necessarily mean the fight over their nominations would be any less noisy. The side-industry of interest groups and pundits that sustain themselves on such political fights is likely to scream and yell and warn of impending doom no matter who gets the nod.
UPDATE: A former law clerk for Wood emails me with a couple of points worth adding. Like Kagan and Napolitano, Wood has also been confirmed by the Senate, though her confirmation (99 to 0) came in 1995, by a largely different body.
The former clerk also took issue with my passing mention of Wood’s harsh words for religious club that barred homosexual members. Ed Whelan at the National Review has reproduced a partial transcript of the exchange here, which is sure to be targeted by the right. But as my correspondent notes, it is always a mistake in judging a judicial record to take any single episode out of the context of the larger record. The former clerk notes:
Judge Wood has a lengthy record protecting free exercise of religion. For example, in the recent case Bloch v. Frischholz, 587 F.3d 711 (7th Cir. 2009) (en banc), Wood turned a dissent of hers from the original panel into a unanimous reversal by the court sitting en banc. Wood’s fierce protection of free exercise won over her colleagues (even the two judges who originally voted against her in the panel opinion). In the Walker case your comment relates to, Judge Wood addressed the procedural posture of the case — following plain law the record did not allow a preliminary injunction to issue. Her dissent even expressly acknowledged two ways in which the religious group might prevail at trial.
The Bloch case concerned residents of a housing complex who had been barred by the condominium association from hanging a mezuzah, a Jewish scroll traditionally hung at entryways, outside their door. The majority initially ruled that the condo rule was neutral and not discrimination. Wood dissented, arguing that the residents had established a claim for discrimination, prompting further review. See here for more about the case.