Supreme Court nominations

Jan Crawford Greenburg reports:

The White House has formalized its short list of Supreme Court contenders and asked six prospects to provide personal background information, with an intensive vetting process well underway, according to sources close to the process.

The leading contenders on the short list: federal appeals court Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, sources close to the process say.

Meanwhile the Washington Post notes that, unlike the last time around, right-wing groups are going to find themselves in the role of the underdog during the next Supreme Court battle:

Conservative groups concede that they have little chance of derailing Obama's choice, barring a scandal. But Supreme Court nominations have long been a rallying point and a fundraising opportunity for interest groups, particularly on the right. And now, at a time of ideological drift among Republicans, a loose coalition of conservative organizations has begun mapping strategies.

The goal, they say, is to fire up supporters and shake up the debate in the Democratic-controlled Senate, in part as preparation for other court fights to come.

Just hours after news of Souter's retirement broke last week, more than four dozen conservative activists hastily put together a conference call to plot their attack. Among other things, they divvied up the jobs of conducting background research on potential candidates, such as Solicitor General Elena Kagan and U.S. Court of Appeals Judge Sonia Sotomayor.

The Committee for Justice and other organizations have issued new fundraising appeals. The Family Research Council, along with other abortion foes, is gearing up to oppose a nominee who, like Obama, is likely to favor abortion rights. The National Rifle Association says it will examine Obama's choice in light of the high court's recent ruling weakening gun laws in the District.

"There's no question the political landscape is different," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a conservative legal group. "But the conservatives are not lying down here and just saying, 'Let's give up.' We want real hearings and real debate."

But it seems like most of the talk at the moment is about just how the Religious Right would respond to a nominee who is gay, with many of them suggesting that they won't make it an issue:

In a move that will surprise gay activists and liberals, a spokesperson for Focus on the Family, a top religious right group, tells me that his organization has no problem with GOP Senator Jeff Sessions‘ claim today that he’s open to a Supreme Court nominee with “gay tendencies.”

The spokesperson confirms the group won’t oppose a gay SCOTUS nominee over sexual orientation.

“We agree with Senator Sessions,” Bruce Hausknecht, a spokesperson for Focus on the Family, which was founded by top religious right figure James Dobson, told me a few minutes ago. “The issue is not their sexual orientation. It’s whether they are a good judge or not.”

Their sexual orientation “should never come up,” he continued. “It’s not even pertinent to the equation.”

...

“Our concern at the Supreme Court is judicial philosophy,” FOF spokesperson Hausknecht continued. “Sexual orientation only becomes an issue if it effects their judging.” For example, he said, “If someone says, `I don’t care what the law says, on the next case involving sexual orientation, I’m going to decide the case in favor of the openly gay party,’ that would be a breach of judicial duty.”

Jake Tapper asked the Family Research Coucil, which gave a similar answer:

Peter Sprigg, a senior fellow at the conservative Family Research Council, says that "the real issue would not be the person's private life but the issue would be would they be imposing their personal ideology upon the court. In this case would they be imposing a pro homosexual ideology, a pro-same sex marriage ideology."

But, as Josh Gerstein points out, that was not what Sprigg was saying back in 2006:

"We don't accept that homosexuality is any kind of cultural identity that should be sought in a judge," FRC's Peter Sprigg told the paper back then. "We think it's a behavior, not something that should be held up as a role model."

Of course, while groups like Focus on the Family and the Family Research Council are trying to sound tolerant and fair-minded, there are also people like Matt Barber of Liberty Counsel who have no interest in that sort of thing:

Matt Barber is a spokesperson with Liberty Counsel. "Well, in light of this nation's undeniable Christian heritage, it's hard to believe we're even having a conversation about whether a sitting United States president will count deviant sexual behavior as a favorable qualification in determining a nomination to the highest court of the land," he says.

In delivering his “if you liked Bush’s judicial nominees, you’re going to love mine” speech today, John McCain blasted Democratic “obstruction” of President Bush’s nominees and held himself up as a paragon of virtue and integrity:

Of course, in the daily routine of Senate obstructionism, presidential nominees to the lower courts are now lucky if they get a hearing at all. These courts were created long ago by the Congress itself, on what then seemed the safe assumption that future Senates would attend to their duty to fill them with qualified men and women nominated by the president. Yet at this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a "judicial emergency" has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.

…

And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.

So, to hear McCain tell it, nobody but him in the Senate understands “simple courtesy” or the basic rule that senators should defer to the president on nominations or that voting against a nominee is “petty, partisan, and disingenuous.”

It is not surprising that McCain would use this opportunity to attack the Democrats on this issue – after all, he is trying to win over the Right and, as we all know, they just love to fight over judicial nominations.  

Of course, it is not as if Republicans have been good stewards of the confirmation process, as McCain realized back before he was busy pandering for right-wing votes:

“We Republicans are not blameless here,” McCain told me. “For all intents and purposes, we filibustered Clinton’s judges, by not letting them out of committee.”

Nor has McCain always upheld his own standard of deferring to the president, as evidenced by his own voting record during the Clinton administration:

Motion to Invoke Cloture on the Nomination of H. Lee Sarokin to be United States Circuit Judge for the Third Circuit: McCain - Nay

On the Confirmation of H. Lee Sarokin: McCain - Nay

On the Confirmation of Rosemary Barkett to be U.S. Circuit Judge for 11th Circuit: McCain - Nay

On the Confirmation of William A. Fletcher to be U.S. Circuit Judge for 9th Circuit: McCain - Nay

On the Confirmation of Sonia Sotomayor to be U.S. Circuit Judge for 2nd Circuit: McCain - Nay

On the Confirmation of Ronnie L. White to be United States District Judge for the Eastern District of Missouri: McCain - Nay

On the Confirmation of Ann L. Aiken to be US District Judge for the OR District: McCain - Nay

On the Confirmation of Susan Oki Mollway to be U.S. Dist. Judge Central Dist. Hawaii: McCain - Nay

On the Confirmation of James J. Brady to be United States District Judge Middle District of Louisiana: McCain - Nay

Of course, all of these Clinton nominees must have been unqualified because otherwise it would have been petty, partisan, and disingenuous of McCain to have voted against them.

Or perhaps McCain only applies this standard to Supreme Court nominations, which would explain his gushing support of Robert Bork.