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
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. …