How Big Will Fight Be Over Supreme Court Nominee?

(April 12) -- This much is certain: There will be a fight over whoever is chosen to succeed retiring Justice John Paul Stevens. Whether it's the Washington equivalent of a classic heavyweight slugfest depends on President Barack Obama's choice. Early signs point to something more like a pro wrestling match -- with lots of theatrics and a predetermined result.

In TV appearances and interviews with reporters over the weekend, top Senate Democrats, including Judiciary Committee Chairman Patrick Leahy, predicted the president's pick would be seated by the time the court begins its new term in the fall.

Republicans have warned Obama not to go too far to the left in making his choice. Sen. Jeff Sessions, the judiciary panel's ranking Republican, left open the possibility of a filibuster if the nominee is someone like Berkeley law professor Goodwin Liu, who's up for a seat on the 9th U.S. Circuit Court of Appeals. But GOP Whip Jon Kyl said a filibuster is "unlikely ... except if there is an extraordinary circumstance."

None of the names floated in recent days -- not even Hillary Clinton's -- have set off alarms on the right. The five said to be on Obama's short list are Solicitor General Elena Kagan, D.C. Circuit Court of Appeals Judge Merrick Garland, Homeland Security Secretary Janet Napolitano, former Georgia Supreme Court Chief Justice Leah Ward Sears and Judge Diane Wood of the 7th U.S. Circuit Court of Appeals. Several reports portray Kagan as the front-runner.

True/Slant's Rick Ungar predicted the Supreme Court will shift to the right no matter where the new justice falls on the ideological spectrum. And Slate's Seth Stern said it's pointless for those on the left to hope for another William Brennan, the Eisenhower appointee who "went on to surprise everybody with his uncanny ability to corral majorities for liberal causes during 34 terms." Stern, author of a forthcoming biography about the justice, doubted that anyone -- "however brilliant and crafty" -- could duplicate Brennan's success as a consensus builder on today's court.

Notably missing from the discussion so far has been any evaluation of the contenders' merits, observed Think Progress blogger Matthew Yglesias.

"I think it's pretty clear that there's no political reason to think a moderate nominee in the Breyer/Sotomayor/Ginsburg vein would actually fare any easier than someone from a more robustly progressive tradition," Yglesias wrote. "The decision about whether or not to launch a no-holds-barred campaign against the nominee will be undertaken for other reasons."

Those reasons could include capitalizing on populist anger following the bitter health care reform battle, to fire up the GOP base ahead of this fall's elections.

"A confirmation fight on social issues like same-sex marriage or judicial activism could also create political problems for Democrats running in conservative states, like Sens. Blanche Lincoln of Arkansas and Michael Bennet of Colorado," noted Peter Baker and Carl Hulse in The New York Times. But they added that while Republicans might bog down the president's legislative agenda or gain negotiating leverage on issues such as Wall Street regulation, some GOP leaders are "reluctant to give Democrats further ammunition to portray them as knee-jerk obstructionists."

Conservatives could argue that the next justice might be a key vote if the Supreme Court ever considers the constitutionality of the new law requiring people to buy health insurance. However, Republican leaders believe "national security and the economy remain far stronger vehicles" than a Supreme Court nomination fight to ride back into the majority in Congress, according to Time's Mark Halperin.