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Stevens' exit a political knot for Obama

Baltimore Sun

Friday's announcement by Justice John Paul Stevens that he would leave the Supreme Court after a 35-year tenure in which he emerged as its leading liberal voice presents the White House with a heady political calculation.

It could invest its efforts, energy and capital in a potentially draining fight this summer over a Supreme Court nominee like Diane Wood, a Chicago federal appeals judge with controversial rulings on abortion in her past who would almost guarantee a raging firefight over her confirmation.

Or it could move toward a less controversial selection, such as Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, in a bid to bolster its domestic agenda in advance of this year's congressional elections. While Garland has been spoken of favorably by some conservatives, a third possibility, Solicitor General Elena Kagan, is also seen as a less-combustible choice than Wood.

Administration officials say the selection process will take place during the next several weeks, and that beyond the three leading candidates, at least seven other names are being considered. Speculation has also arisen around Michigan Gov. Jennifer Granholm, Massachusetts Gov. Deval Patrick and Sen. Amy Klobuchar of Minnesota, although the White House would not confirm they are under consideration.

President Barack Obama, in remarks Friday at the White House, said the nominee should have "a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

On paper, it would seem that this would be Obama's last chance to appoint an assertively liberal choice to replace Stevens, who emerged as the loudest voice of the court's left wing. Democrats hold a large majority in the Senate - 59 seats. Next year, their grip on the chamber could wane.

But Obama confronts a decidedly different environment than last year, when he tapped New York federal appeals court Judge Sonia Sotomayor for the court. For one thing, the president sits at his lowest ebb in terms of his popularity with the American public. For another, Democrats no longer hold a filibuster-proof majority in the Senate, meaning that Republicans could potentially block a controversial pick - or threaten to, at least.

Moreover, the administration must spend most of the rest of the year convincing a skeptical electorate of the benefits of the health care overhaul as well as advancing a domestic agenda focused on job creation and jump-starting the ailing economy.

"I think the difficulty for Democrats is not so much the battle itself but it's the timing," said Peter Finn, a Democratic political consultant. "It's going to make it, I think, a little difficult ... to push through some of the legislation they want to get done between now and November."

In the wake of Obama's health care victory, Senate Democratic leaders have been planning to move as quickly as possible this spring toward enacting the financial regulation bill - a major revamp that would mark another major accomplishment for the administration and Democratic candidates to carry into the midterm elections.

Processing a Supreme Court nomination will consume big chunks of time and attention, although at the outset it will be handled mostly within the Judiciary Committee and it may not consume the full Senate until summer or fall - after a financial regulation bill has already passed. But some warn that Obama's nomination, if it sparks a fierce partisan response, could poison the political environment on other issues.

"He still has a fairly ambitious agenda between now and November," said Ryan Patmintra, press secretary to Senate Republican Whip Jon Kyl, R-Ariz. "Does he want to pick his battle here?"

Senate Republicans served notice that they planned to closely scrutinize Obama's choice, but said they would reserve comment until a nominee is chosen.

"As we await the president's nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law," said Senate Minority Leader Mitch McConnell, R-Ky.

A bloody, full-throated confirmation fight later this summer could also serve as a distraction from the overall Democratic message heading into the fall, one that will be centered on painting Republicans as out-of-step with everyday Americans who favor corporate interests. To that end, the president is expected to use the nomination as a platform for further criticism of the Supreme Court's decision, earlier this year, allowing unlimited corporate spending in federal elections.

A polarizing fight this time over, say, abortion could dilute that message, much as Sotomayor's confirmation hearing last year turned into a public debate over affirmative action.

All of those factors suggest that the White House might want as close to a no-fuss, no-muss nominee as it can find, and at least two of the potential picks could potentially fit that bill.

Garland, 57, is a former federal prosecutor and Justice Department official who helped spearhead the government's prosecution of Timothy McVeigh, the Oklahoma City bomber. He was named to the federal appeals court by President Clinton and has been viewed as a judicial moderate.

Kagan, 49, is a former dean of Harvard Law School, where she won praise for her solicitousness toward conservatives. As solicitor general, her views of the reach of executive power during wartime have enraged many liberals. She has no judicial experience.

Wood, 59, taught with Obama at the University of Chicago, and many believed she would be the president's choice last year rather than Sotomayor. But anti-abortion groups have targeted her since her candidacy came to light. She has said bans on so-called "partial-birth" abortions are unconstitutional and has upheld the right of abortion-rights groups to use the RICO statute to sue abortion protesters, a ruling reversed by the Supreme Court.

The selection process will be run in the White House by the Office of Legal Counsel, with chief counsel Robert Bauer in charge. Former lead counsel for the Democratic National Committee, Bauer was the lawyer for Obama's presidential campaign before becoming White House counsel last fall.

His point person running the selection team will be Susan Davies, associate counsel and the former top lawyer to the Senate Judiciary Committee. Once a litigator at Sidley and Austin in Chicago, Davies clerked for Justices Anthony Kennedy and Stephen Breyer.

Bauer and Davies have a three-person team of lawyers devoted to the task, but they will also be assisted by Ron Klain and Cynthia Hogan, lawyers and top advisers to Vice President Joe Biden.

Christopher Eisgruber, a former clerk of Stevens and a professor at Princeton University, said the president should not be afraid to select a more liberal nominee, because Republicans in the current polarized environment will object regardless.

"Maybe he can avoid it with a Kagan or a Garland," Eisgruber said. "But since he's likely to have a fight, he shouldn't shy away from an outstanding judge or attorney."

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