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President Barack Obama, fresh off a bruising battle over healthcare, could face another tough fight in Congress to fill a U.S. Supreme Court vacancy if 89-year-old Justice John Paul Stevens retires as expected.
A confirmation battle could sidetrack Democratic plans to focus on the economy and job creation ahead of November’s congressional elections in which Republicans are hoping to regain control of Congress.
Stevens, who leads the four-member liberal minority on the nation’s highest court, said in recent interviews he will decide soon on whether to retire after nearly 35 years as a justice. Obama is expected to nominate a fellow liberal to replace Stevens and then push hard to win the required Senate confirmation for the lifetime appointment.
Obama administration officials and legal experts said the leading candidates to replace Stevens were expected to be current Solicitor General Elena Kagan and a pair of U.S. appeals court judges, Diane Wood and Merrick Garland.
“Given that it’s an election year, I expect Republicans to aggressively oppose whomever Obama nominates, in order to stir up their (conservative) base,” said Nan Aron of the Alliance for Justice, an association of environmental, civil rights and consumer advocacy groups.
The confirmation battle could dominate Congress for some time and make it tougher for Obama’s fellow Democrats to focus on trying to reduce the U.S. unemployment rate, expected to be a key issue in the congressional elections.
It also could complicate last-ditch efforts by some Democrats and Republicans to win Senate passage of compromise legislation to combat global climate change.
Liberal and conservative interest groups are gearing up for the anticipated battle and the televised Senate confirmation hearings. The confirmation process could drag the Senate into a protracted fight over contentious social issues.
Curt Levey of the conservative Committee for Justice said Obama may want to avoid an all-out, election-year fight that focuses on such divisive social issues such as abortion, gun rights and gay rights.
The president’s pick — expected to be a liberal who would replace a liberal — is not likely to change the court’s ideological balance, which has been divided for years with five conservatives and four liberal justices.
Sotomayor was confirmed by the Democratic-controlled Senate last year on a largely party-line vote of 68-31.
Potential nominees Kagan, Wood and Garland, all considered moderate liberals, could face varying degrees of Republican opposition. But even conservative activists said each probably would win confirmation in a Senate in which Democrats control 59 of 100 seats. A simple majority is needed for confirmation.
Republicans could raise a procedural roadblock that would take 60 votes to clear, but Senator Jon Kyl, a member of the Republican leadership, said he did not expect such a move.
A White House spokesman said the White House would be prepared if a vacancy arises, but added there is no short list awaiting a potential vacancy.
Kagan, 49, and Wood, 59, were among the finalists for the vacancy created last year by Justice David Souter‘s retirement, but Obama decided to name Sotomayor. She became America’s first Hispanic justice and third woman ever to serve on the court.
One Senate Democrat said Stevens should delay his retirement to next year to put off a bruising confirmation battle so soon after the yearlong fight to pass legislation to revamp the U.S. healthcare system.
“If a year passes, there’s a much better chance we could come to a consensus,” Senator Arlen Specter, who switched political parties a year ago, said on “Fox News Sunday.”
“I think the gridlock in the Senate might well produce a filibuster,” said Specter, the former Judiciary Committee chairman, referring to a vote-blocking procedure that Republicans could use for a Supreme Court nominee.
Kyl, another Judiciary Committee member, said, “I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person.”
“You may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster,” said Kyl, who also appeared on “Fox News Sunday.”
Boston University political science professor Graham Wilson said Obama may want to nominate someone who will face little, if any, resistance.
“The recently publicized ability of the (Republican) minority in the Senate to delay and block could be very important,” Wilson said, adding that Obama might need to nominate a candidate with a safe record.
If Obama does not nominate a staunch liberal, he could face heat from his Democratic Party‘s liberal base.
The potential vacancy comes not long after Obama assailed the high court. Obama in January openly criticized it after the conservative majority prevailed in a 5-4 ruling that removed long-standing campaign finance limits and allowed corporations to spend freely in campaigns for president and Congress.
“This ruling strikes at democracy itself,” Obama said at the time in an unusually harsh criticism of the Supreme Court.