What to expect in the coming court battle

Both sides have incentive to fight over the confirmation of the next Supreme Court justice, no matter who it is.

Published May 1, 2009 11:30PM (EDT)

Even before President Obama has settled on his choice to replace retiring Supreme Court Justice David Souter -- indeed, even before he spoke on Friday afternoon about the qualities he'd like to see in a nominee -- battle lines are being drawn and groups from all over the political spectrum are girding themselves to do battle over the eventual nominee.

A fight does seem inevitable, even if the nomination might normally have been relatively uncontroversial: Partisans on both sides will demand it. Plus, Supreme Court nominations are the best political theater available between elections. Media coverage will thus tend to play up (and encourage) any rancor -- and various senators, who can practically smell television cameras, will be more than happy to provide it as long as they get some time in the spotlight in exchange.

Moreover, there are several factions that could see this as a time to make a statement and demonstrate the power they wield within their respective parties.

The left, certainly, will want to pressure Obama to pick someone who could end up being the liberal equivalent of Justices Samuel Alito or Antonin Scalia. If that's ever going to happen during this administration, this may be the best time to do it: There's the Democrats' powerful majority in the Senate, of course, and though that conceivably could persist for some time, it might not always be combined with approval ratings as high as Obama's are right now. The left hasn't won many of these battles during the administration's time in office thus far, so that will provide even further incentive.

And on the right, various pressure groups -- especially in the social conservative base -- are likely to see both a battle worth joining and an opportunity to score some points and potentially raise some money in the process as well. The current political situation within the Republican Party will be another factor there. As new organizations push "rebranding" efforts that could end with a turn, at least to some degree, away from steadfast social conservatism, activists will want to demonstrate their continued relevance, and on the other side the reformers may be pushing a different strategy and message.

Even if there is a pitched battle, though, the confirmation vote itself might still go fairly smoothly; certainly, on paper, the Democrats can easily confirm anyone Obama chooses. That's no guarantee, however -- if Republicans opt to break with the precedent they set under the Bush adminstration and attempt a filibuster, several Democratic senators could very well defect and deny their party the 60 votes needed to overcome the maneuver. Recent convert Sen. Arlen Specter, D-Pa., has already demonstrated a willingness to buck the administration despite his party switch, for instance, plus Sen. Ben Nelson, D-Neb., is always a question mark and so are a few others. (And there's the question of whether Minnesota's Al Franken will have been seated by the time the vote happens -- this may provide even more incentive for former Sen. Norm Coleman to continue his legal battle.)

That's if the nominee can even make it to the Senate floor. Specter's defection might actually hurt Democrats in this sense, as they need at least one Republican on the Judiciary Committee to vote in favor of the nomination in order for it to go to the full body. Sen. Lindsey Graham, R-S.C., has been the focus of speculation as the committee member besides Specter most likely to provide that lone vote. Sen. Orrin Hatch, R-Utah, could be a dark horse -- he backed Attorney General Eric Holder. But if it comes down to that, both would face intense pressure from within their party.

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

MORE FROM Alex Koppelman

Related Topics ------------------------------------------

Supreme Court War Room