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The Stevens Vacancy Setting
The setting in which the Stevens vacancy is likely to be filled (keep in mind there is no vacancy until Stevens actually leaves the Court) is one in which President Obama can still nominate virtually any(qualified)person— with one significant caveat. As President Bush learned in putting forward Harriet Miers to replace Justice O'Connor, you must be certain to have the support of your own party in the Senate. As you see in the setting chart, the Miers nomination (Mi) came at a time that was ripe for controversy. (See the Nomination Setting link for a full description of this setting chart.) Despite a 55-45 Republican majority in the Senate, with its accompanying 67% support rate of voting with the president, Bush's approval rating with the public was down to 40% and moving south. In addition, the nomination was a significant one for the liberals/Democrats. The vacancy was one of the two women on the Court and O'Connor was the median justice, the swing vote in the relatively few 5-4 decisions that liberals were able to manage in an otherwise conservative Court. In appointing Miers, Bush had apparently mollified the opposition by appointing perhaps the best they could hope for, namely, a woman whose conservative credentials were yet to be fully tested in a judicial setting. The more conservative of the Republicans, however, were outraged, fearing that Miers would not be a strong conservative voice on the Court, no better at best than O'Connor. Replacing Miers with the solidly credentialed Alito in this potentially controversial setting resulted in a relatively narrow 58-42 confirmation vote. Despite a precipitous drop in his presidential approval rating, from 63% or so at the time of Sotomayor's nomination to 49% at the time of the Stevens retirement announcement, Obama retains a very positive setting for his second nomination to the Supreme Court (SV in the chart). With an 18-seat majority over the Republicans and close to a 99% winning record in the Senate on those items on which he has taken a stand,the confirmation road for an Obama nominee seems clear. This is especially so given that Stevens is one of the four more liberal members of the Court. His seat will not be seen by most conservatives/Republicans as a critical one, although conservative ideologues are always sensitive to having any justice replaced by anyone seen as a liberal ideologue. So, the continuing positive setting for Obama means that he can get any nominee confirmed who pleases just over 5/6ths of the Democrats. He needs no Republican support. In 2009, Obama had his way with the Senate in 78 of the 79 votes on which his position was clearly identified (CQ Weekly, 1/11/10). The issue for Obama is not picking a nominee who can be confirmed, but how much bipartisan support he wants for the nominee. Would the setting, for example, permit the appointment of a lesbian liberal with a jurisprudence that eschews the literal original intent doctrine of the conservative right in favor of a "constitutional fidelity" approach? Presumably so, but not without a hostile battle from the political right.
Created on May 26, 2009 by GW |
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