- The Washington Times - Wednesday, May 5, 2010

Liberals fear that after they helped elect President Obama he’ll abandon them when he nominates a Supreme Court justice, choosing a consensus-building moderate rather than a liberal in the mold of retiring Justice John Paul Stevens.

If that’s Mr. Obama’s plan, liberals say a Democratic administration holding a significant majority in the Senate could be blamed for sending the nation’s highest court tilting further to the right, a significant betrayal for an administration that will need help from its hard-core supporters in a fierce confirmation battle and midterm congressional elections.

George Washington University Law School professor Jonathan Turley said there’s “a palpable sense of mistrust that’s developed” in the liberal community toward the White House.

Questions arose about the liberal credentials of Justice Sonia Sotomayor last year, Mr. Turley said, but the groups agreed to put their concerns aside and rally behind her bid to replace retiring Justice David H. Souter.

“Many liberals feel they bit their tongue during the Sotomayor nomination but the expectation was that the White House would deliver on the Stevens nomination,” Mr. Turley said.

Among the names on the short list for the upcoming court vacancy are Solicitor General Elena Kagan and federal appeals court judges Diane Wood and Merrick Garland. Backers of the three cite their ability to negotiate with conservatives instead of staking out strong liberal positions.

The current White House isn’t interested in a fight with the Senate to get a liberal leader on the Supreme Court, said Mark Tushnet, Harvard Law School professor and former clerk for Justice Thurgood Marshall.

“Obama isn’t indebted to liberal advocacy groups, and in any event transforming the law via the courts is clearly not something that he thinks important,” Mr. Tushnet said.

An ability to negotiate can be critical on a conservative-dominated court, said Doug Kendall, leader of the liberal-leaning Constitutional Accountability Center public interest group that closely follows the court.

“I think somebody like Merrick Garland who is more moderate, or may be too moderate for some tastes, has been on a conservative-dominated court and moved conservative colleagues onto progressive rulings, which is an incredible skill for the nominee to have,” Mr. Kendall said.

Judge Wood has worked well with her conservative colleagues on the 7th Circuit, Mr. Kendall said, and Miss Kagan has used her intellect for consensus-building at Harvard Law School.

Among the other potential candidates are federal appeals court judges Sidney Thomas and Ann Williams, former Georgia Chief Justice Leah Ward Sears, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and Harvard Law School Dean Martha Minow.

But the person they are replacing is Justice Stevens, Mr. Turley said.

The 90-year-old retiring justice “is a liberal icon and was considered the leader of the left side of the court,” Mr. Turley said. “To replace him with someone with a more conservative record would be considered a terrible breach of faith with many of Obama’s supporters.”

Mr. Obama has been clear on his criteria for a Justice Stevens replacement “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”


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