Resistance to Obama choice for high court could be modest

Sunday, May 3, 2009

WASHINGTON -- Awaiting President Obama's first Supreme Court pick, activists expect a less-spirited nomination battle than would have been anticipated if a conservative justice had stepped down or Democrats held a slimmer edge in the Senate.

Retiring Justice David H. Souter is part of the court's liberal wing, and his replacement by a Democratic administration probably won't change the ideological balance.

With Democrats holding a nearly filibuster-proof margin in the Senate, the confirmation process may be noisy. But it also may lack the same energy and tension were Republicans in a reasonable position to block the nominee.

That doesn't mean conservative groups won't use the occasion to air their views and communicate with their members.

"Obama's own record and rhetoric make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion," said Ed Whelan, president of the conservative Ethics and Public Policy Center.

Democrats doubt there will be much punch in a Republican-led pushback.

"I'd venture a guess that the most politically astute conservatives are not enthusiastic at the prospect of igniting a culture war over a Supreme Court nominee" under these circumstances, said Jennifer Palmieri, a former Clinton White House aide now with the Center for American Progress.

Souter, 69, announced Friday that he would step down at the end of the court's term in late June.

Obama promised to name a Supreme Court justice who combines "empathy and understanding" with an impeccable legal background. Obama pointedly referred to his plan to have "him or her" on the bench in time for the Supreme Court's session that begins the first Monday in October.

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives," Obama told reporters after speaking with Souter by telephone. Word of the impending retirement had leaked Thursday night.

As a candidate for the White House, Obama said he would not use a litmus test for nominees, but observed that he thought the landmark 1973 Roe v. Wade ruling that gave women the right to end their pregnancies was correctly decided. Obama's selection will be the first high court nomination by a Democrat in 15 years.

Souter was named to the court in 1990 by the first President Bush, a Republican. But on abortion as well as other issues, the New Hampshire native quickly proved himself to be less than the strong conservative the GOP had expected. In 2000, he was one of four dissenting justices on a ruling that declared President George W. Bush the winner of the disputed national election.

Democrats, who control 59 seats in the Senate, will be in a strong position when Obama's nominee arrives for confirmation proceedings.

Democratic Sen. Patrick Leahy of Vermont, who will preside over confirmation hearings as chairman of the Judiciary Committee, issued something of a gentle challenge to Republicans. "I hope that all senators will take this opportunity to unify around the shared constitutional values that will define Justice Souter's legacy on the court," he said.

Senate Republican leader Mitch McConnell, in a written statement of his own, said, "I trust the president will choose a nominee for the upcoming vacancy based on their experience and evenhanded reading of the law, and not their partisan leanings or ability to pass litmus tests."

Souter, who is expected to return to his native New Hampshire, is the youngest of three members of the court who have figured in retirement speculation in recent years. Justice Ruth Bader Ginsburg is 76 and recently underwent cancer surgery. Justice John Paul Stevens is 89, the oldest member of the court.

But one of the ironies confronting Obama is that even replacing all three would not allow him to fundamentally alter the court's makeup on key cases in which there often are four judges predictably on one side, four on the other, and Justice Anthony Kennedy in the middle, in effect the deciding vote.

Sen. Arlen Specter of Pennsylvania, a Republican who turned Democrat earlier in the week, said the court "could use some diversity along a number of lines," including African-Americans and Hispanics.

The current court has one black justice, Clarence Thomas, and Ginsburg is the only woman. There has never been a Hispanic on the Supreme Court.

Associated Press writers Charles Babington, Ben Feller, Jesse J. Holland, David Espo and Jennifer Loven contributed to this report.

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