Washington — Liberals fear that after they helped elect President Barack Obama he’ll abandon them when he nominates a Supreme Court justice, choosing a consensus-building moderate rather than a liberal in the mold of retiring Justice John Paul Stevens.
If that’s Obama’s plan, liberals say a Democratic administration holding a significant majority in the Senate could be blamed for sending the nation’s highest court tilting farther to the right, a significant betrayal for an administration that will need help from its hard-core supporters in a fierce confirmation battle and midterm congressional elections.
George Washington University Law School professor Jonathan Turley said there’s “a palpable sense of mistrust that’s developed” in the liberal community toward the White House.
Questions arose about the liberal credentials of Justice Sonia Sotomayor last year, Turley said, but the groups agreed to put their concerns aside and rally behind her bid to replace retiring Justice David Souter.
“Many liberals feel they bit their tongue during the Sotomayor nomination but the expectation was that the White House would deliver on the Stevens nomination,” Turley said.
Ability to negotiate
Among the names on the short list for the upcoming court vacancy are Solicitor General Elena Kagan and federal appeals court judges Diane Wood and Merrick Garland. Backers of the three cite their ability to negotiate with conservatives instead of staking out strong liberal positions.
The current White House isn’t interested in a fight with the Senate to get a liberal leader on the Supreme Court, said Mark Tushnet, Harvard Law School professor and former clerk for Justice Thurgood Marshall.
“Obama isn’t indebted to liberal advocacy groups, and in any event transforming the law via the courts is clearly not something that he thinks important,” Tushnet said.
An ability to negotiate can be critical on a conservative-dominated court, said Doug Kendall, leader of the liberal-leaning Constitutional Accountability Center public interest group that closely follows the court.
“I think somebody like Merrick Garland who is more moderate, or may be too moderate for some tastes, has been on a conservative-dominated court and moved conservative colleagues onto progressive rulings, which is an incredible skill for the nominee to have,” Kendall said.
Wood has worked well with her conservative colleagues on the 7th Circuit, Kendall said, and Kagan has used her intellect for consensus-building at Harvard Law School.
Among the other potential candidates are federal appeals court judges Sidney Thomas and Ann Williams, former Georgia Chief Justice Leah Ward Sears, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and Harvard Law School Dean Martha Minow.
‘Breach of faith’
But the person they are replacing is Stevens, Turley said.
The 90-year-old retiring justice “is a liberal icon and was considered the leader of the left side of the court,” Turley said. “To replace him with someone with a more conservative record would be considered a terrible breach of faith with many of Obama’s supporters.”
Obama has been clear on his criteria for a Stevens replacement — “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”
But liberal groups who supported Obama’s election and stood behind Sotomayor want more than that. They want someone with a proven liberal track record on major issues, something the names on the White House’s short list seem to be lacking, much to the groups’ dismay.
NARAL ProChoice America wants someone who “supports the constitutional right to privacy as reflected in Roe,” the landmark 1973 ruling that a woman has a constitutional right to an abortion. The Leadership Conference on Civil Rights wants a justice who will ensure that the rights of all Americans are protected.
Groups like these seek assurances because presidents have been surprised at how their nominees have voted once they’ve received their lifetime appointments to the Supreme Court.
Stevens was considered to be a conservative when President Gerald Ford nominated him in 1975, but he turned out to be a leader of the court’s liberal bloc. In 1990, President George H.W. Bush was told he was getting a conservative when he nominated Souter. Bush and other conservatives were unhappily surprised, however, when Souter aligned himself with the court’s liberals for most of his career.
Several leaders of liberal groups that typically support Democrats’ judicial nominees refused to speak for attribution for fear of being locked out of White House consideration on this and other judicial nominations.
However, none expect to oppose Obama’s Supreme Court nominee, who is widely expected to hold liberal views on abortion and other hot-button issues. But presidents underestimate the support of their ideological allies at their own peril.
Most recently, President George W. Bush overestimated the conservative support for his White House counsel, Harriet Miers, in 2005 when he nominated her to replace retiring Justice Sandra Day O’Connor. Miers ended up having to withdraw from consideration after conservative groups and Republican senators began to question her ideological credentials.
Justice Samuel Alito, now considered to be one of the more conservative justices on the high court, ended up with the nomination.
With just 41 seats in the Senate — their second-smallest contingent in 29 years — Republicans would have to be unified to block an Obama nominee. Last year, nine Republicans joined to help confirm Sotomayor.
But even with a significant majority in the Senate, sometimes you have to be practical, Kendall said.
With the current makeup of the court — four conservatives, four liberals (including Stevens’ replacement) and swing vote Justice Anthony Kennedy — the winners are those who can convince Kennedy or another member of the opposite bloc to agree with their opinions, he said.
“I think the president is right to be looking for a nominee who has consensus building skill and can actually move more conservative justices,” Kendall said.