The First Appointment

It appears that President Obama will have the opportunity to nominate a Supreme Court justice earlier in his first term than many people thought. Justice David Souter is expected to announce his retirement at the end of the current Supreme Court term in June. Justice Souter was appointed by President George H.W. Bush, but from the start of his tenure has shown his liberal chops. That means the philosophical make-up of the court will not be radically changed by the new appointment.

The NY Times has provided a list of potential nominees being considered by the White House, and interestingly, all three on that list are women:

White House officials contacted Thursday night declined to comment. But Mr. Obama and his team have been thinking for a long time about whom he might put on the court. Among the people whose names have been floated in recent months are Elena Kagan, whom Mr. Obama named as his solicitor general, and two federal appeals court judges, Sonia Sotomayor and Diane Pamela Wood.

The list, however, is hardly exhaustive and certainly not the "short list" of potential nominees. While I'd like to see another woman on the Court (and I prefer Sonia Sotomayor), there are undoubtedly some men who are also being considered, among them Harold Koh, the Dean of Yale Law School (for more on Mr. Koh, see my earlier post on his nomination by the White House for the position of legal counsel to the State Department).

If Justice Souter does in fact announce his resignation in June, President Obama will have to work fast, as will the Senate, to fill that position in time for the start of new Supreme Court session. Will that be possible? The NY Times appears to think that it is:

The departure will open the first seat for a Democratic president to fill in 15 years and could prove a test of Mr. Obama’s plans for reshaping the nation’s judiciary. Confirmation battles for the Supreme Court in recent years have proved to be intensely partisan and divisive moments in Washington, but Mr. Obama has more leeway than his predecessors because his party holds such a strong majority in the Senate.

I'm not so certain. Even with the addition of Arlen Specter to the party and the seating of Al Franken (which could happen in June, but only if the GOP decides not to appeal any Minnesota Supreme Court decision in Franken's favor, which is unlikely), I don't see any evidence that the Senate Democrats are going to be willing to use any of that powder they've kept so assiduously dry for the past 8+ years. Our Senate Majority leader has demonstrated time after time that he is incapable of facing down the opposition on key tests, and he certainly hasn't demonstrated any willingness to keep the more conservative members of the caucus in line on such key votes.

This first nomination will be a key test, even though it won't change the court all that much. I think we can expect some serious fireworks in the confirmation process, all of which will come from across the aisle. The GOP figures the Democrats wouldn't have the guts to even whisper the phrase "nuclear option," and I suspect they are right.

I'm sure the White House is well-aware of all this. I am equally as sure that will probably enter into the equation of the selection process.

In other words, I am not even cautiously optimistic.