For the next Supreme Court justice, check the playbook

McClatchy NewspapersApril 13, 2010 

WASHINGTON — It's Supreme Court justice-picking time, and you can't tell the players or the play without a program.

President Barack Obama will spend the next few weeks shuffling his lineup before he selects the nominee to replace retiring Justice John Paul Stevens. For those watching at home, here are some people and narratives to keep an eye on.

Sen. Lindsey Graham:

The senior Republican on the Senate Judiciary Committee is Jeff Sessions of Alabama, but Graham of South Carolina is the one to watch. Graham has cannily positioned himself as the gettable GOP guy for the panel's 12 Democrats. He was one of seven Senate Republicans to vote for Justice Sonia Sotomayor last year, and the only GOP member of the Judiciary Committee to do so.

Graham has been negotiating with the White House over Guantanamo Bay detention issues, and he and White House Chief of Staff Rahm Emanuel know how to deal with one another. The White House doesn't necessarily need Republican votes to confirm the next nominee, so long as there isn't a GOP filibuster, but Graham will reflect the non-obdurate wing of the Republican Party.

"Judge Sotomayor is definitely a more liberal judge than a Republican president would have nominated, but elections have consequences," Graham noted tellingly last year.

Constituency Stroking:

The White House can mollify certain constituencies by letting it be known that representative candidates merit a tryout.

Obama's White House reportedly is working from a list of 10 potential nominees. Not to typecast them, but some reflect potential shout-outs to different constituencies. A Westerner from well outside of the Ivy League, Montana-based Judge Sidney Thomas of the Ninth Circuit Court of Appeals, suddenly popped into the mix Monday.

Leah Ward Sears of Georgia, the first female African-American state Supreme Court justice, is again on Obama's public list, though she left the state bench last year.

Heavy Breathing Media Speculation:

Hillary Clinton.

The secretary of state, former senator and one-time Obama rival saw her trial balloon float and then pop in record time. Within a few news cycles of Stevens' retirement announcement, White House spokesman Robert Gibbs was asked about and then dismissed speculation about Clinton. This seemed less a real trial balloon than the media and a few senators playing a familiar round of wouldn't-it-be-interesting.

Information abhors a vacuum, so the longer the White House goes without selecting a nominee, the more possibilities will come rushing in from right or left field.

"We will have many weeks to spin the big wheel and play the name game," Gibbs said Monday.

The Law Blogs:

It was a conservative blog, Verum Serum, that obtained and posted last May the Sotomayor speech that contained the "wise Latina" remark. Former Supreme Court clerk Ed Whelan's Bench Memos blog delves mercilessly but informatively into judicial paper trails. The neutral Scotusblog.com keeps its finger on the judicial pulse, and others are coming along.

The law blogs help drive the confirmation debate in part because they can masticate a huge amount of material for easier public digestion. Consider just one potential nominee, Judge Diane Wood of the Chicago-based Seventh Circuit Court of Appeals. Wood has written roughly 400 opinions during nearly 15 years on the bench.

Someone's got to read all that stuff. Whoever the candidate is, the law blogs could well be the ones to do the serious homework and find the viral item.

The Fight for an Early Definition:

Sad to say, Supreme Court justices and nominees remain pretty obscure. Two-thirds of Americans surveyed can't name a single current justice, surveys by Findlaw.com have found.

Consequently, whatever side can seize the easel first and sketch the nominee will gain an immense advantage. In 1987, nominee Robert Bork was famously defined within 45 minutes by the late Sen. Edward Kennedy's warnings of a "land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters (and) rogue police could break down citizens' doors in midnight raids."

Last year, by contrast, Sotomayor's compelling Bronx-to-the-bench life story and status as first Hispanic nominee helped lock in an early favorable impression early.

Eventual Confirmation:

Surprises are always possible. Harriet Miers, President George W. Bush's thinly qualified nominee, withdrew her name after three weeks in October 2005. Overall, though, any nominee enters the competition as a prohibitive favorite.

Of 151 Supreme Court nominees, only 12 have been rejected outright. The last one was Bork, who was nominated by Republican President Ronald Reagan. At the time, Democrats outnumbered Republicans 55-45. This year, however, a Democratic president will be submitting a nominee to a Senate where his party holds a comfortable majority of 59 seats.

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McClatchy Newspapers 2010

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