Washington Matters


Why Obama Will Pick Moderate For Supreme Court Vacancy

Mark Willen

The nominee will be liberal but not an ideological flamethrower.



Hard-core Democrats and hard-core Republicans alike are going to be disappointed when President Obama picks a Supreme Court nominee in a few weeks. It’s a given that Obama will appoint a liberal to replace the liberal Justice John Paul Stevens, who is retiring, but he’s unlikely to pick the kind of fierce ideologue that those on either end of the political spectrum are hoping for as they rev up for a huge debate.

Not that Obama’s pick won’t spark an ideological brawl -- it certainly will. Republicans are already marshaling arguments against all the names on Obama’s short list. They are determined to find something they don’t like, if for no other reason than that the appointee is sure to be less conservative than they will want.

But as Obama contemplates his choice of a firebrand liberal, a run-of-the-mill liberal or a moderate liberal, he knows a secret. It doesn’t really matter. As long as he or she is left of center, the new justice will join the three others on the left against the four on the right in the most controversial cases, leaving it to Justice Anthony Kennedy to cast the deciding swing vote, just as he does now.

Obama knows that, and that’s why a he’ll go for a relatively moderate choice -- a liberal, to be sure, but one who won’t give Republicans more ammunition than necessary. Some Democrats will be disappointed in that -- they’d rather have someone who’ll excite the base and get the fund-raisers going.

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But Obama has other aims. He’s thinking of the long-term impact of the new associate justice, not just a vote or a move to excite campaign donors. His biggest priority is someone who can get along with Kennedy and maybe a couple other conservatives, someone who can build bridges, not burn them, someone who can help influence Kennedy’s vote. He’d rather name a justice who will have an impact on the Court’s decisions than someone who can write fiery dissents for the losing side.

Who that will be is not yet clear, but Solicitor General Elena Kagan is a good possibility. Greg Stohr, Bloomberg’s excellent Supreme Court reporter, notes that as president of Harvard, she won the cooperation and respect of more-conservative faculty members, in part by supporting the appointment of Jack Goldsmith, one of George W. Bush’s White House lawyers, to a faculty position. And as Bill Clinton’s aide, she worked with Sen. John McCain (R-AZ) to write regulations allowing the Food and Drug Administration to regulate tobacco.

Liberals aren’t thrilled with the idea of a Kagan nomination because she supports a strong executive branch, but the greater criticism comes from conservatives who are zeroing in on the friend of the court brief she signed while at Harvard contending that the military shouldn’t be allowed to recruit on campus because of its ban on gays. The opposition, suggesting Kagan is antimilitary, follows a nasty whispering campaign suggesting she herself is gay, which the White House flatly denies, not that it should matter. Another potential drawback: Because she is currently the solicitor general, there will be several big cases decided in the next few years for which she will have to recuse herself.

Obama will have to weigh all that as he chooses among Kagan, federal appellate judges Merrick Garland, Diane Wood and Sidney Thomas, Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Graham and several others on his short list. Whoever he picks will spark a fight, but not a devastating one, especially when his main goal is to pick someone who can work constructively with the Court’s conservative majority and its crucial swing vote.




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