On SCOTUS, Obama's Not Looking for a Fight

The many profiles of soon-to-be-retiring justice John Paul Stevens, featuring rare, on the record interviews, are trial balloons. The man is likely to retire by the end of the month. Since he informally sent this signal to the White House late last year by hiring one clerk, the White House's informal team of Supreme Court mavens (Dan Pfeiffer, counsel Bob Bauer, vice presidential chief of staff Ron Klain) has been actively, though quietly, preparing for the eventuality.


Whether that includes the leaking of a list of names of BusinessWeek -- Diane Wood, Merrick Garland, Elena Kagan -- I don't know. No one has leaked a list of names to me, although it makes sense that Obama would consider the same people he considered when the last spot opened last year.

Obama made sure that Garland was vetted, and interviewed both Kagan and Wood last year, but he had his heart set on Sonia Sotomayor from the beginning, and used the vetting process as a way of testing his own heart against the thoughts and feelings of his advisers. The legal cognoscenti believes that Kagan, the solicitor general, has the inside track, with some folks swearing that Obama has already decided on her, and that he'll simply go through the motions again. It's not unreasonable to assume that Obama had his SCOTUS picks mapped out from the beginning of his presidency: the guy is a student of the Court, and he has a very particular theory of the types of justices that would best ensure that his vision for the court is appropriately articulated.

Sotomayor's pick was about changing the narrative. The second pick will be about adding some intellectual creativity to the mix. One reason he might not pick an appeals court judge this time is that appeals court judges tend to constrain themselves to precedent a bit more than Obama believes is necessary, while long-serving district court judges, or academics, are likely to be more expansive in how they approach the job.

Of course, Obama would never admit this, because the Senate expects a certain formalism in the president's nominees: given the constraints imposed by conservative politics -- the nominee can't be an open and aggressive opponent of originalism -- the White House and the president are likely to emphasize the same narrow band of qualities that ensured Sotomayor's confirmation: amply qualified, good life story, intelligence, and fidelity to "interpret" not "make" law. Obama and his team are well aware that judicial confirmation battles almost always excite Republicans and confuse Democrats. They are also well aware of the particular political constraints imposed by the 2010 election.

Ideally, he's looking for someone who can persuade swinger (uh, swing-ideological justice) Anthony Kennedy to change his mind on a set of issues, someone whose qualifications are beyond approach, who doesn't have a lingering paper trail of outrageous (i.e., conventionally liberal) viewpoints, and yet someone he trusts can subtly steer the court to the left. The complication here is that Stevens is the conscience of the court's liberal wing, and space he occupies now is not a space that any nominee simply fills. So growth capacity -- the potential to grow into a Stevens -- will factor in, too.

Politically, the White House wants to find an unimpeachable nominee who the American people quickly accept. Let Republicans make the noise they do and will -- which may excite their own base but won't really do much more than that -- and get the nominee confirmed quickly, and without and fuss. Kagan, Wood and Garland fit the bill.