Washington Expect a fight. Enlist supporters but keep them in line. Protect secrecy. Reach out to opponents even though you can’t woo them.
Inside the White House, those are some of the lessons learned from the selection and confirmation of President Barack Obama’s first Supreme Court nominee last year. With a vacancy coming this summer on the nine-member court, those lessons amount to a road map for how Obama will choose the next justice — and what his team will do to get that person confirmed by the Senate.
The choice of a Supreme Court justice, with lifetime tenure, can affect American life for a generation or more, giving a president a reach that lasts far beyond his time in the Oval Office. Justice John Paul Stevens’ decision to retire after more than 34 years has given Obama a second chance within a year to shape the court.
Washington is speculating about who will get the job, but that probably won’t be known publicly for weeks. Before then, there are other questions — how Obama will decide, why he will make the choice he does, what his team will do to protect his interests — that will shed light about the thinking of this president.
Obama’s approach in finding a successor to Stevens, the leader of the court’s liberals, is expected to mirror the one he used last year in choosing federal appeals court judge Sonia Sotomayor to replace Justice David Souter, who retired.
A look at the main lessons the White House is applying, according to those who were part of last year’s search and are familiar with Obama’s preferences:
• Obama will pick whomever he wants.
The White House expects loud, organized opposition from conservative groups no matter the nominee and assumes that most Republican senators will start and end at “no” when it comes to a confirmation vote, especially in an election year. Of the 68 senators who voted for Sotomayor, only nine were Republicans. And GOP leaders are as at odds with Obama as ever.
• Obama has told everyone what he wants.
He wants someone who meets the expected standards — strong credentials, a record of excellence, a sharp mind, dedication to the rule of the law — plus he puts a premium on understanding how court opinions affect people in real life.
This time, the White House is playing up another factor: someone who has proved able to win people over and forge consensus. That could well point to someone with experience on a federal appeals court or someone from politics. Expect Obama to choose someone he thinks can achieve a 5-4 vote on cases by persuading the swing justice, Anthony Kennedy.
• Obama won’t change his methods.
Many considered Sotomayor the front-runner all along. But Obama decided on Sotomayor, the first Hispanic justice and just the third woman to serve on the court, only after digging into the weeds of the decision as a former constitutional law professor.
He read the writings of his contenders and told advisers to challenge his assumptions and make alternative cases. He interviewed the four finalists. He spent the last weekend of his review at Camp David, thought it all through some more, talked to advisers by phone, came back to the White House and made his decision.
• Obama will reach out for his own reasons.
Futile as it may be, Obama will signal bipartisanship. Last year, Obama called or met with every member of the Senate Judiciary Committee, which decides whether to recommend confirming a nominee. Once he settled on Sotomayor, she made a get-to-you-know tour through the Senate, meeting with 92 lawmakers. She still ended up getting confirmed in a largely partisan vote. So why try?
The outreach allows the White House to try to solicit genuine input from the other side and perhaps disarm some potential critics with in-person attention. It also allows Obama and his team to say they are not shutting out Republicans, and to be able to call out the critics who accuse them of that.
• Obama clearly has a list he likes.
Three of the people on Obama’s list are federal appeals court judge Diane Wood, Solicitor General Elena Kagan and Homeland Security Secretary Janet Napolitano. Often noted is that all three of them, like Sotomayor, interviewed with Obama last year.
Less remembered is how administration officials close to Obama described those three candidates after the fact: Obama would have been comfortable choosing any of them for the court. Presumably, that much has not changed.