Official Washington is bracing for another epic battle over President Obama's next nomination to the Supreme Court, which should come in the next few weeks. The trigger was Justice John Paul Stevens's recent announcement that he is retiring, opening up a "liberal" seat on the court and prompting all sides to begin preparations for what will surely be trench warfare.
Obama met last week with key senators to smooth the way, and he expressed confidence that "we can come up with a nominee who will gain the confidence of the Senate and the confidence of the country, and the confidence of individuals who look to the court to provide even-handed justice to all Americans." But based on recent history, the president was being too optimistic. Even his aides predict rough times ahead. That's because the court plays such a central role in our national life that just about every major interest group wants to shape the panel according to its own values. Various organizations use a nomination fight to raise money, often by scaring their supporters into thinking that if the outcome goes against them, Armageddon will be just around the corner.
Obama's front-runners appear to be Solicitor General Elena Kagan, Merrick Garland of the U.S. Court of Appeals for the District of Columbia, and Diane Wood of the U.S. Court of Appeals for the Seventh Circuit in Chicago. All three worked in President Bill Clinton's administration and are considered stellar legal minds.
But the signs of struggle are already emerging. Kagan, considered by many in Washington as Obama's most likely choice, has prompted attacks from the right. One concern among conservatives is an E-mail she sent to students and faculty members in October 2003, shortly after she became dean of Harvard Law School. She complained that military recruiters were allowed on campus even though they endorsed practices that she said violated the university's anti-discrimination policy. She was referring to the military's prohibition of openly gay people from serving in the armed forces. "This action causes me deep distress," Kagan wrote. "I abhor the military's discriminatory recruitment policy," which she called "a moral injustice of the first order." Conservatives are ready to make this a major issue in her confirmation hearings, though it is expected to be only a small part of their attack if Kagan is Obama's choice. CBS published a blog entry in which a writer said that Kagan is a lesbian, which she and the White House deny. CBS initially added a note to the post with the White House's objections and later removed the entry from their site. The incident illustrates how personal the whole nomination business has become, and all over the capital, conservatives are researching Kagan's record as well as those of other possible nominees looking for strike points. "There's going to be a food fight," says Democratic pollster Geoff Garin. "The question is whether there will be a filibuster." If so, the Democrats, who hold a 59 to 41 majority, will need at least one Republican vote to move the nomination forward.
"There's no 'Kumbaya' going on—it's gotten harsh and bitter," says historian Doug Brinkley. He traces the acrimony to President Nixon's controversial and unsuccessful high court nominations of Clement Haynsworth and Harrold Carswell in 1969 and 1970, respectively, and later, the defeat of Ronald Reagan's nomination of Robert Bork in 1987, and the divisive but successful nomination of Clarence Thomas by George H.W. Bush in 1991. "Now it's almost par for the course," Brinkley says. The pattern is for opponents to dredge up everything they can to harm a nominee, including books checked out of a library and movies rented from a video store. "We live in glass houses," he says, and the result too often is a media circus.
Every recent nominee has endured some form of the assault strategy, including Sonia Sotomayor, who was confirmed last year, and both John Roberts and Samuel Alito, who were nominated by President George W. Bush and confirmed a few years ago.