A small cadre of GOP researchers has already begun scouring the records of Souter’s potential replacements — hoping to find a trove of inflammatory legal writings or off-the-wall positions to hang around the necks of vulnerable Democrats in the 2010 midterms, Republican aides tell POLITICO.
“Whoever they get is basically a zero-sum replacement for Souter — so I think it’s more of an opportunity for us than it is for them,” said a senior Republican leadership aide, adding that a liberal nominee could hurt conservative Democrats like Sens. Blanche Lincoln (Ark.) and Evan Bayh (Ind.), both of whom are up for reelection in 2010. “I don’t think, given their majority, that we can stop them, but it’s a great opportunity for us to tie their incumbents to whatever crazy opinions or statements come to light.”
Even so, Republicans acknowledge they’ll need to proceed with caution during the marquee Judiciary Committee hearings to avoid further marginalizing their party and driving away would-be voters with attacks on a nominee who’s widely expected to be either a woman or a member of a minority group or both.
As the aide put it: “We have to be careful not to f—- up and overreach. So it’s a balancing act.”
National Public Radio broke the news of Souter’s retirement plans Thursday night. Obama made it official Friday, dramatically interrupting spokesman Robert Gibbs’ daily press briefing to announce Souter’s retirement and his own intention to nominate someone “who understands that justice isn't about some abstract legal theory or footnote in a case book.”
He also indicated that he wanted the new justice to be seated in time for the high court’s next term, which begins in October.
Obama’s short list reportedly includes Judge Sonia Sotomayor of New York, a Hispanic woman; Elena Kagan, Obama's solicitor general; Diane Wood, a federal judge with Reagan- and Clinton-era Justice Department experience; and Democratic Michigan Gov. Jennifer Granholm, a Harvard Law grad who once served as a federal prosecutor.
While Obama made a point of punting on the issue of gender — and a person close Obama says there are indeed “white men” under consideration — court watchers are banking on a female appointee.
That may create a ticklish dynamic for the Republicans, as their point person on the nomination will almost certainly be a white man — even if they don’t know which one yet.
When Pennsylvania Sen. Arlen Specter switched to the Democratic Party this week, he left the Republicans without a ranking member on the Senate Judiciary Committee, which will hold confirmation hearings for Obama’s nominee. Next in line after Specter is Sen. Orrin Hatch (R-Utah), but he is restricted from taking the job by Senate term limit rules. Following Hatch is Sen. Chuck Grassley (R-Iowa), who has already said he wants to take the job in 2011 when his term as ranking member on the powerful Finance Committee expires. But Grassley is precluded from serving as ranking Republican on two full committees simultaneously. That leaves Sen. Jeff Sessions, the conservative former U.S. attorney from Alabama.
Several GOP aides said Friday they expected Sessions to become the ranking member, which could be ratified by the conference on Tuesday. Sessions has been out of town for much of the week, traveling because of a death in his family, and hasn’t made his intentions clear.
Amy Howe, a constitutional lawyer and co-founder of the widely-read SCOTUSblog, said Republicans risk being deemed “obstructionist and disrespectful” if they attacka nominee who’s a woman or a minority at time when there’s only one woman — Ruth Bader Ginsburg — and one African-American — Clarence Thomas — on the court.
Howe thinks Wood would be the canniest choice for Obama politically because “she’s well-regarded as a moderate and the GOP won’t be able to say ‘Whoa, what a flaming liberal.’”
Obama, for his part, will have to be careful in choosing a nominee that appeases his base without alienating more conservative centrist Democrats.
“If the Republicans think Obama’s going to serve them some crazy liberal on a platter, they’re out of their minds,” said a senior Democratic Senate aide. “Haven’t they been watching the man?”
Judiciary Committee Chairman Sen. Pat Leahy (D-Vt.) has already begun planning for hearings. On Friday, Leahy said he expected Obama to consult with senators before announcing his nominee.
Eric Ueland, former chief of staff to former Majority Leader Bill Frist (R-Tenn.), said scheduling is the first potential cause of friction between the White House and Congress, with the majority traditionally accommodating minority senators on matters of timing.
“The control of this process from the administration or majority standpoint is lost the moment a nominee is announced,” Ueland said. “At that point, control of the process, in terms of its timing shifts to the minority. ... There will no doubt be a full-court press to go fast, fast, fast from the executive branch. Republicans will rightly say there is a lot of work to be done before we get to hearings.”
Sen. John Cornyn (R-Texas) was already sounding that theme Friday, saying Republicans would "thoroughly investigate the nominee's background and do what the Constitution requires of us — which is give advice and consent on the nomination.”
He also warned that the confirmation process could slow action on some of Obama’s other priorities.
"This came unexpectedly, so people will have to evaluate what it means to the agenda, and the majority leader will have to take that into the account,” Cornyn said. “Regulatory reform, patent reform, health care reform ... I'm not sure if we can do all of it at the same time, so this may push some of these items farther back on the agenda. I do expect judicial nomination to suck up quite a bit of oxygen."
Cornyn is a member of the Judiciary Committee, one of the most partisan committees in Congress, and it is there that the battle lines will first be drawn. Most Democrats will likely fall in line behind Obama’s choice — but the most intriguing subplot may involve Specter, whose behavior is nearly impossible to predict.
Specter told reporters in Philadelphia on Friday that “another female justice would be a good idea.”
“I think that, given the proportion of women in our society, that one out of nine is underrepresented,” he said.
“But the court could use some diversity along a number of lines,” he said, adding that African-American candidates and Latinos should also be considered.
Even if Specter joins his former party in opposition, the GOP would have to pick off one more Democrat on the Judiciary Committee to block the nomination there.
Off the Hill, conservative groups acknowledge they face an uphill battle.
“In order to be effective here, we will need to pick off some of the red- and purple-state Democrats,” said Curt Levey, head of the conservative Committee for Justice.
John Bresnahan and Josh Kraushaar contributed to this report.