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Obama navigating high court nomination process with more ease this time

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By Anne E. Kornblut and Robert Barnes
Washington Post Staff Writer
Saturday, May 8, 2010

The last time President Obama announced a Supreme Court nominee, he was four months into his tenure, struggling to steer the economy and launch his health-care overhaul. With members of his staff still exhausted from the presidential campaign -- and most of them unfamiliar with the process -- the White House scrambled to create from scratch a list of candidates and to ensure that Obama could achieve victory on one of his first high-profile decisions.

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By comparison, the ongoing process is almost laid-back.

Or at least more familiar. As Obama prepares to announce within the next few days his nomination to replace Justice John Paul Stevens -- with observers and people close to the process convinced that it will be Solicitor General Elena Kagan, despite tight-lipped silence from the White House -- officials say his steps reflect growing confidence within his inner circle in handling one of the most consequential choices of the presidency.

Almost everything about the Supreme Court nomination this time builds on the lessons of the Justice Sonia Sotomayor experience. During the last go-round, administration officials were not always certain whether to push back on criticism about potential candidates for fear of appearing as if their choice was already made. This time, the White House has in several instances been aggressively involved, most notably after a blogger aired rumors that Kagan might be gay. "It meant we adopted a posture that was, I think, more aggressive in, frankly, protecting the president's ability to make a selection," one administration official said.

The team of officials overseeing the current selection and its portrayal in the media is different: Robert F. Bauer is White House counsel, having replaced Gregory B. Craig. The earlier process relied heavily on two members of Vice President Biden's staff, Ron Klain and Cynthia Hogan, and Stephanie Cutter, a senior strategist brought in to manage it. This time, the selection is being managed mostly by Susan Davies of the counsel's office, officials said.

Perhaps the biggest difference is that Obama today simply has more going on. Since Stevens announced his retirement April 9, the White House has rushed from one unexpected event to another: fallout from a deadly coal mining accident; an oil rig explosion in the Gulf Coast; an attempted car bombing in Times Square; an economic meltdown and riots in Greece. In between, Obama traveled to Wall Street for a speech on financial regulatory overhaul and to Iowa, Illinois and Missouri to talk about economic recovery. He made two weekend trips -- to a memorial service in West Virginia and to the Gulf Coast.

If he was able to squeeze in the selection process between crises with relative ease, administration officials said, it was partly because he had been through it. Even many of the names were familiar. "He has a body of thought and knowledge of the candidates themselves," a senior administration official said.

But in other respects, the process is the same as a year ago, with senior administration officials hinting about who is on the shortlist -- for the past couple of weeks, it has been Kagan, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, Judge Diane Wood of the 7th Circuit and Judge Sidney Thomas of the 9th Circuit -- but remaining relatively opaque with outside interest groups. Activists with liberal interest groups said White House officials have kept open communication lines but have been circumspect about Obama's thinking. "The contact has typically been one-way, which is, 'We'll hear what you want to tell us,' " said one activist, who spoke on the condition of anonymity for fear of offending the administration.

Another said that there have been several meetings but that the White House has not much shared its point of view. Still, one outside source said the president's preference is less apparent than at the same point a year ago, just before he nominated Sotomayor. "Last time around, you knew Sotomayor was going to be the candidate," the person said. "She was such a home run on so many different counts. . . . I would say this one is much, much, much more difficult for them."

As the process draws to a close, officials in several groups handicapped the race as between Kagan and Garland, giving Kagan the edge. Kagan, they said, has weathered criticism from conservatives and liberals. The left has criticized her defense of some of the terrorism policies of the George W. Bush administration, although her defenders point out that she was only representing the policies of the Obama administration.

One Democrat close to the process said the questions about Kagan and her lack of a record on issues liberal groups are concerned about has not hurt her.

Because of her work in the Clinton administration, one activist said, "she has a lot of powerful liberal friends in this town. She has been very effective in using her progressive allies."


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