Filling John Paul Stevens Supreme Court Vacancy Big Test for Obama

Article excerpt

Replacing retiring Supreme Court Justice John Paul Stevens depends largely on who President Obama nominates. But given Obama's political standing these days, confirmation by the Senate is unlikely to be quick and easy.

What a difference a year makes. On May 1, 2009, President Obama announced the retirement of Supreme Court Justice David Souter. Mr. Obama's job approval stood at 65 percent in the Gallup poll. His nominee, Sonia Sotomayor, was confirmed by the Senate 68-31.

Now Obama has another Supreme Court vacancy to fill with the retirement announcement Friday of Justice John Paul Stevens, and Gallup has the president at 49 percent. Obama has just used up a lot of political capital passing healthcare reform, and his increasingly unpopular Democratic Party is heading into difficult midterm elections.

How this nomination process goes will of course depend heavily on who Obama selects. Someone with impeccable credentials and no major controversies could expect confirmation in a Senate where the Democrats still have a 59-41 majority. But atmospherics do matter, especially at a time of sharp partisan differences.

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"I think a president's job approval ratings always make a difference," says Cal Jillson, a political scientist at Southern Methodist University in Dallas. "But they're rarely definitive."

Still, presidents usually get their way on Supreme Court nominations. The last high court nominee to be voted down in a full Senate vote was Judge Robert Bork in 1987. Two subsequent nominees, Douglas Ginsburg and Harriet Miers, withdrew their names from consideration before any votes were taken, but all other nominees have been confirmed since Judge Bork went down.

Lessons learned from Bork

In part, that is a result of the lessons learned in the Bork case. Opponents went after him for his conservative views practically within minutes of his selection, and he never recovered. Now, nominees are ultra-cautious, bordering on inscrutable, in their confirmation hearings, leaving senators with less to go on than they did back when nominees spoke freely.

"In this case, it's very much an inside game," says Mr. Jillson. "There are vast coalitions who will favor and oppose whoever he nominates. There will be a lot of noise and a lot of dust in the air. But the question is where you get the votes."

Even before Obama gets to the confirmation question, he faces the issue of whom to select. …