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GOP looks beyond court pick

Control of Congress may be a higher priority than fighting Obama's nominee.

April 13, 2010|By James Oliphant
  • Justice John Paul Steven's retirement notice comes at an inconvenient time for both parties.
Justice John Paul Steven's retirement notice comes at an inconvenient… (J. Scott Applewhite / Associated…)

Reporting from Washington — Like President Obama, Senate Republicans are facing a crucial decision regarding the next nominee for the Supreme Court. No one expects the GOP to simply rubber-stamp Obama's nominee, but the degree of its response could have implications in the November midterm elections and beyond.

This time, Republicans have a weapon they lacked last year when Sonia Sotomayor was tapped for the court. They have enough votes to conceivably mount a filibuster and block the nominee outright. But they'll have to decide whether to use that weapon now or wait until the Supreme Court stakes may even be higher.

For both sides, Justice John Paul Stevens' retirement announcement last week arrived at an inconvenient time. Neither side wants an ideological battle based on divisive social issues, such as gun control or abortion rights, with an election ahead.

Republicans, emboldened by the moribund economy and public opposition to the healthcare overhaul, are looking ahead to this year's congressional races with an eye on regaining control of Congress. Democrats are focused on selling a consumer-friendly message to voters centered on healthcare and financial regulatory reform, portraying themselves as the party of middle-class centrists.

The White House will largely shape the nature of the contest by the nominee it selects.

A more moderate pick, such as federal appellate Judge Merrick Garland, a former prosecutor from Washington, could defuse a potential powder keg before it's lit. A more left-tilting one, such as law professor Pamela Karlan of Stanford University or Diane Wood, a federal appeals court judge in Chicago, could detonate it.

Once the decision is made, it will be the GOP's turn to respond. And this year, because of Sen. Scott Brown's victory in Massachusetts, the Republicans have 41 votes in the Senate, allowing them to potentially filibuster and prevent a floor vote on a nominee.

Senators are treading cautiously -- not ruling out a filibuster, but neither suggesting one is likely. Speaking Monday on NBC's "Today" show, Sen. Orrin G. Hatch (R-Utah) said a moderate judge could be confirmed "in a relatively short period of time."

But if the White House chooses an "activist judge," as Hatch termed it -- "we ought to do everything in our power to defeat that person."

Still, the GOP wants to avoid a fight over social issues, which often become the focus of Supreme Court confirmation hearings.

If Obama "picks a moderate, then they should stick to the anti-big government themes that seem to be working. But if the president picks a liberal, then they are going to have to change direction and go after social issues," said John G. Geer, a political science professor at Vanderbilt University.

That has risks. A fight over social issues could alienate the moderates the party is courting, he said.

A filibuster has risks of its own. It has never been successfully used to stonewall a Supreme Court nominee.

Republicans historically have been critical of employing it, going so far as to threaten to shut down the Senate five years ago over Democratic obstruction of Bush administration federal appeals court nominees. At that time, some Senate Republicans advocated doing away with the ability to filibuster judicial nominees.

But party leaders are wary of reinforcing the image of the GOP as "the party of no." And in any event, a replacement for Stevens would not alter the court's political balance.

Ironically, if the GOP does decide to filibuster Obama's choice, it will likely point to the president himself as justification.

In 2006, then-Sen. Obama joined in a failed Democratic effort to filibuster the nomination of Samuel A. Alito Jr., over concerns the nominee was too deferential to executive power. Obama did so even as he criticized the strategy as "the wrong way of going about it."

"President Obama himself attempted to filibuster Justice Alito, who now sits on the Supreme Court," Sen. Jon Kyl of Arizona, the Senate Republican whip, said Sunday on ABC's "This Week." "So if the president isn't going to take it off the table, I'm not going to take it off the table."

joliphant@latimes.com

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