President Obama’s is at odds with his Democratic base on who he should pick to replace Justice John Paul Stevens on the U.S. Supreme Court.
Obama wants to put a politician on the court — or rather, he wants a jurist with political skills: the ability to get in a room (a court room, a back room) with the other justices, be likable, impressive and persuasive and win their vote.
“It’s very important that the president select somebody who can be persuasive with the other justices,” said Susan Liss, of the Brennan Center for Justice at New York University. “Given the makeup of the court at the moment, it’s a very important role.”
A White House official Wednesday laid out an even simpler goal that Obama wants his nominee to be able to achieve: “Get to five.”
“Among the many other qualities he has laid out, the president is looking for a nominee with the coalition building skills of Justice Stevens who can get to five,” the White House official told The Daily Caller.
However, many among the president’s base want a liberal flame-thrower, not a lefty known for being liked by conservatives. All of the four names on the current short list – Diane Wood, Elena Kagan, Merrick Garland and Sidney Thomas – fit the second bill.
The difference between Obama and his most liberal supporters is largely one of style. Obama believes that crafty intelligence and a cooperative approach is ultimately most effective. It’s a philosophy of influence he has been known for going back to his days at Harvard Law School, and one he has tried to use as president with limited success.
Garland, a federal judge on the U.S. Appeals Court for the D.C. Circuit., and Thomas, a federal appeals judge on the 9th Circuit covering the West Coast, may best meet this criteria. But Wood, a federal appeals judge on the 7th Circuit, and Kagan, the U.S. solicitor general, also have records of working well with ideological and political opponents.
However, the activist left wants someone who will stand and fight openly for their principles.
“I’d be interested in trying to defend the value of progressive jurisprudence in general. There is a value in saying that a certain ideology, if espoused openly, should not be a disqualifier,” said Faiz Shakir, head of the liberal ThinkProgress blog housed at the Center for American Progress.
It is the difference, in some ways, between having a backroom dealer and a public square combatant.
Obama is “more interested in demonstrating a pragmatism in his picks,” Shakir said. “These are not people who are viewed as ideologues. [Obama] too wants to have a reputation in history as someone who picked responsible pragmatic jurists for the court but didn’t attempt to engage in a whole sale ideological makeover.”
Glenn Greenwald, a liberal attorney and blogger, went as far as to say that Obama is going to make the Supreme Court more conservative if he nominates Kagan or Garland.
“We’re talking about the very real possibility here that President Obama, a Democratic president who progressives worked very hard to elect, with a Senate of 59 Democrats, could actually move the Court to the right,” Greenwald said last month.
Greenwald said that Wood, whose circuit covers Wisconsin, Illinois and Indiana, is the most desirable of those on the short list, but also said she is still not as liberal as Stevens.
Wood has made some controversial rulings on abortion, which may end up preventing her from being named. The White House does not likely want a long, drawn-out debate over abortion this summer further hurting their chances of keeping Republican gains to a minimum in the November midterm elections.
It’s just one example of how Obama’s philosophy of influence is not the only thing guiding the course he’s taken with his second Supreme Court nomination. The current political environment is also a big factor.
Even here, the hard-line left can make a strong case that with Republican gains in the Senate virtually inevitable this fall, Obama will have less ability to confirm an outspoken liberal after this year.
“The left is saying you have to swing for the fences because this is your last chance to do that,” said a senior Republican Senate aide.
On the other hand, the aide said, “if you’re a vulnerable Democrat senator up for reelection, like Blanche Lincoln [of Arkansas], I’m going to tell the White House, ‘Don’t make me vote on a crazy. Don’t make me be one of 53 votes, because I won’t be.’”
Liss, who worked for President Clinton on the nomination of Justice Breyer and has a long record in public interest law, said “the realpolitik of this has to be taken into account.”
“If the president has a second term and he has four openings and he’s accomplished his agenda, the world will look very different and a person he selects will look more overtly progressive and the administration will be more likely to go to the mat for that kind of person,” she said.
Obama on Wednesday met separately with two Republican senators on the Senate Judiciary Committee – Minority Whip John Kyl of Arizona and Orrin Hatch of Utah – but did not indicate to them a preference for any of the four candidates that he has so far met with, according to those with knowledge of the meetings.
Both Kyl and Hatch voted for Kagan’s nomination to solicitor general, and Obama may have been looking for a sense of where two lawmakers stand on voting for her to be elevated to the Supreme Court. But the president did not indicate if he was leaning in her direction.
The White House has not ruled out announcing their nominee this week.
As with Obama’s first nominee, Justice Sonia Sotomayor, buzz words are being batted around to define the essential qualities the president wants. For Sotomayor it was “empathy.” This time it’s “coalition builder” or “consensus builder.”
Obama’s penultimate goal for the new justice would be to blunt the significant influence over the court of Chief Justice John Roberts and conservative firebrand Justice Antonin Scalia through a mixture of intellectual firepower and collegial goodwill.
The ultimate goal would be getting swing vote Justice Anthony Kennedy to side with the liberal wing of the court: Justices Stephen Breyer, Ruth Bader Ginsburg, and Sotomayor.