Amid all the speculation about who President Obama will pick to replace retiring Supreme Court Justice John Paul Stevens, the pundits and partisans have already overhyped at least one factor, according to White House officials: the politics of the confirmation vote.
Much of the early analysis of possible nominees has focused on how senators will react to the ideological character of the president’s pick. Is this the time for Obama to go with a more progressive selection? Can the Senate stomach another political brawl so soon after its historic battle over health care?
“He could choose Jeff Sessions to be the nominee and there will still be a big old fight over it,” one White House official said.
The White House is hinting that the ideological cast of its ultimate pick doesn’t really matter. Obama’s team is expecting a full onslaught from the right, no matter who he chooses.
“The president recognizes that regardless of who he picks, there will be a fight. So the prospect of a fight with Republicans doesn’t factor into his decision about one candidate over another, whether one candidate is going to galvanize Republicans or whether another is a more risky choice in some way,” says one senior White House official, requesting anonymity in discussing sensitive matters. Referring to the conservative senator from Alabama (and the most senior GOP figure on the Judiciary Committee), the official added: “He could choose Jeff Sessions to be the nominee and there will still be a big old fight over it.”
Does that mean Obama is free to pick a more progressive nominee if he wants to? Not quite. Obama’s aides say the president is looking for more personal qualities than ideological colors in his second pick for the Supreme Court. In that sense, Obama is looking for a nominee who has some of the persuasive powers of the retiring justice John Paul Stevens.
“He’s interested in someone who can be part of building coalitions in the Supreme Court,” says the senior official. “There’s talk about the increasingly ideological nature of the Roberts court. He’s less interested in someone who can have an ideological fight than someone who is capable of building coalitions to make decisions that fall in line with what the president thinks is the proper role for the court.”
Top of mind for Obama’s aides is not the traditional litmus test of abortion, but the court’s recent decision to allow unrestricted corporate spending on independent political ads (in the Citizens United case). Another pending case that troubles the White House also involves lifting restrictions on corporations: the court’s long-standing review of the anti-fraud Sarbanes-Oxley law passed after the collapse of Enron in 2001.
The president is expected to name his pick within the next month, leaving the Senate with two intense months to consider the nominee and vote on their fate.
Coordinating the Supreme Court message among outside groups is the former White House communications director Anita Dunn. Her efforts are likely to be more directed towards keeping Obama’s base engaged and enthused, rather than applying pressure on a handful of senators whose votes may be in play. “We need to make sure that people understand that the stakes are really high, whether it’s Citizens United or health care,” says a senior Obama aide.
The White House leaned heavily on the life story of Sonia Sotomayor, Obama’s first Supreme Court pick, in getting her through the confirmation wars. But in the aftermath of the bitter health-care battle, with the Senate as polarized along partisan lines as ever, the president’s aides know it will take more than a good biography to get the next pick through.
“There’s no question that whoever the president chooses will shape how every voter perceives who he is,” says another senior Obama aide. “It says a lot about him and his presidency, and that’s true for Democrats, independents and Republicans who don’t have a kneejerk partisan reaction to whatever he does.”
The high stakes might help explain why the White House decided to hold next week’s bipartisan meeting in the Oval Office. Not content with his regular meeting with Democratic and Republican leaders, President Obama added the bipartisan leaders of the Senate Judiciary Committee to his guest list. No matter whom he ultimately picks, the president wants to look reasonable to voters on either side of the aisle--and especially those somewhere in the middle.
Richard Wolffe is Daily Beast columnist and an award-winning journalist. He covered the entire length of Barack Obama's presidential campaign for Newsweek magazine. His book, Renegade: The Making of a President, was published by Crown in June.