President Barack Obama might have a conversation with his predecessor before he settles on a replacement for U.S. Supreme Court Justice David Souter, who is expected to retire from the court when the current term ends in June.
Former President George W. Bush could prepare Obama for the flak he might take over whomever he nominates — from supporters!
Bush ran into a buzz saw with his 2005 nomination of Harriet Miers, whose lack of judicial experience and flimsy grasp of constitutional law factored into her ultimate decision to withdraw from consideration. Another drag on Miers’ nomination was strong criticism from some Bush supporters who didn’t think she was conservative enough.
It’s not hard to imagine a scenario where Obama could find himself at odds with his base.
First, it’s a relatively small window to replace Souter before the court’s fall term begins. If Obama nominates a pure liberal, Senate Republicans could filibuster — recalling that then-Sen. Obama voted to filibuster Justice Samuel Alito (who was nominated after Miers’ withdrawal). Others who voted to block Alito’s nomination included current Vice President Joe Biden and Secretary of State Hillary Clinton. Democrats would be foolish to count on party-switcher Arlen Specter of Pennsylvania to automatically support a liberal nominee.
If Obama opts for a more moderate nominee, the liberal base will be angry. It wants a justice who reflects its views. And there’s always a chance a “confirmable” pick, someone without a long judicial track record or published views, could be a stealth conservative.
Indeed, Souter turned out to be a stealth liberal after Republican President George H.W. Bush nominated him in 1990. Souter didn’t have much of a paper trail, which helped his nomination hurdle the Senate. But early on he became a fairly reliable liberal vote on the court.
Souter’s impending departure, then, is both an opportunity and a lesson for the new president.