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Pending midterm elections add potential for friction to court nomination

By Scott Wilson
Saturday, April 10, 2010; A01

No matter whom President Obama puts forward as his next Supreme Court nominee, the White House is anticipating a fight within the sharply divided Senate, one made even more fractious by election-year politics.

Court nomination fights have traditionally served to electrify each party's voter base, and the confirmation process to fill the seat of departing Justice John Paul Stevens will come as members of Congress are accelerating their reelection campaigns.

Since Obama nominated Judge Sonia Sotomayor to the court in June, the political climate has become far stormier, in no small part because of his effort to secure health-care reform legislation and Republicans' near-united stand against the president's proposals.

Many Republicans regard continuing opposition to Obama's agenda as their best hope to pick up seats in the November midterm elections, and Democrats are a vote short in the Senate of being able to avoid a filibuster that has been used only once in a Supreme Court nomination fight.

Meanwhile, the Sotomayor confirmation process has given the White House momentum heading into this one, including a short list of vetted candidates, and presidential aides are confident in their ability to successfully navigate the weeks ahead.

Their chief concern is how quickly the Senate will act; they fear that Republican delays could push the confirmation process past the August recess and fully into the fall campaign season.

"In a way, it's premature to say how this will unfold until we know who the nominee is going to be and what record they will bring to the process," said Robert Dallek, a presidential historian. "But the one thing I am sure of is that it won't be an appointment that flies through the Judiciary Committee and the Senate without some extremely contentious debate."

Bill Clinton was the last president to fill a Supreme Court seat in a midterm election year, in 1994, and his choice, Judge Stephen G. Breyer, was confirmed 87 to 9. After Obama nominated Sotomayor to replace retiring Justice David H. Souter, the Senate confirmed her by a vote of 68 to 31.

Neither of those nominations changed the liberal-conservative balance on the nine-member court, which often decides the most controversial issues by a single vote. Similarly, Obama will not be making a "balance-upsetting pick" in replacing Stevens, said a senior administration official, suggesting that the choice should inspire "less of a battle mentality" than if a conservative justice were retiring.

Administration officials say they are prepared to move faster than they did on the Sotomayor selection because many of the leading candidates have already been vetted, including three whom Obama interviewed as finalists.

"Obviously, it helps that we've been through the process once before," the official said, speaking on the condition of anonymity to discuss internal White House thinking. "We're not starting from scratch this time."

Obama nominated Sotomayor on June 1, and the Senate confirmed her by the August recess, despite delays that arose over her past remarks suggesting that, in some circumstances, Latinas make better judges than do white men.

"The hope and expectation is that this confirmation process will be concluded in that same time," said a second White House official who is involved in the process. "That is our marker."

The Senate has filibustered only one Supreme Court nomination -- a bipartisan move in 1968 to block Justice Abe Fortas's ascension to chief justice -- and political analysts say Republicans are unlikely to adopt that approach, regardless of whom Obama nominates.

Of the 41 Republican senators, four were members of a bipartisan group that pledged in 2005 to reject filibusters of judicial nominees unless "extraordinary circumstances" arose. That deal is no longer operative. But at least three of the Republicans -- Susan Collins and Olympia J. Snowe of Maine and Lindsey O. Graham of South Carolina -- have stuck by that standard in recent years.

Obama made clear during the Sotomayor search that a diversity of life experience and judicial "empathy" were qualities that he valued in a nominee, and officials said at the time that he had some interest in adding a "first" to the high court. Sotomayor became the first Hispanic justice.

In a brief Rose Garden statement Friday, Obama added a political edge to the criteria he will use this time. He said that in addition to having a track record of judicial excellence, his choice will "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."

Obama was alluding to the high court's January ruling in Citizens United v. Federal Election Commission, a decision that opened the door for corporations and labor unions to spend unlimited amounts of money for and against specific candidates.

Obama sharply criticized the 5 to 4 ruling in his State of the Union address, and White House officials have said that finding ways to mitigate its effect on the November elections is a top legislative priority. Using such a populist message, which casts the high court as defender of the country's unpopular corporate elite at a time of severe economic strain, could help rally liberal interest groups and even some independents behind the nominee.

White House counsel Bob Bauer, who was not part of the administration during the Sotomayor nomination, will oversee the project and manage the vote-counting operation in the Senate Judiciary Committee and the Senate as a whole.

Anita Dunn, the former White House communications director, will manage the outreach to outside groups during the confirmation process, according to an administration official.

Bauer, who brings decades of Washington experience to the post, may open the selection to candidates beyond those who have already been vetted.

"The fact we've done this before is not going to prevent the president or the people involved in this from looking again," the senior administration official said. "I wouldn't assume those are the only names being looked at."

Staff writers Paul Kane and Anne E. Kornblut and research editor Alice R. Crites contributed to this report.

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