Supreme Court nomination fight will be played for political points 

They may lose the battle over President Obama's next Supreme Court nominee, but the fight could help Republicans by energizing voters and contributors ahead of the midterms.

Nominating a replacement for Justice John Paul Stevens, the high court's leading liberal, presents a delicate challenge for Obama.

He needs another win this election year, and can't afford to give Republicans too potent a campaign issue. But Obama also wants a nominee in Stevens' mold -- not an easy sell in the current political climate, with voters hostile to anything with the savor of partisanship.

"I don't think you can sell anybody on the basis of them being a liberal," said Graham Wilson, a Boston University political scientist. "I do think one way to go at this is to try to pick somebody where you can say the opposition is based on ethnicity or gender."

During last year's nomination of Justice Sonia Sotomayor, her ethnicity and gender became the ironclad diversions against Republican attacks early on.

But a scouring of her record led to the discovery of a 2001 speech in which she surmised a "wise Latina" may "reach a better conclusion" in some cases than a "white man who hasn't lived that life," prompting a hot debate about identity politics and the law.

In the end, Sotomayor was confirmed, but her gender and ethnicity cut both ways in the argument. Obama's next pick will likely show how well the administration learned the lesson of that fight.

So far, candidates in the Beltway speculation pool include U.S. Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and Judge Diane Wood of the 7th U.S. Circuit Court of Appeals, all white women. D.C. Circuit Court Judge Merrick Garland, a white man, also is among the names being mentioned.

"I view the process of selecting a Supreme Court nominee as among my most serious responsibilities," Obama said, adding his search will be for someone with "similar qualities" as Stevens.

Obama is already nudging the Senate to approve his unnamed nominee in time for the court's next term in October. The timing sets the nomination battle up perfectly as a potentially explosive issue in the November congressional elections.

Though it could help both parties with fundraising and organizations, Supreme Court nominations tend to resound more strongly with Republicans and are likely to help that party more -- unless Obama's pick looks to be in any real danger.

Republican Sen. Orrin Hatch of Utah, a member of the Senate Judiciary Committee, voted against Sotomayor and warned Obama to pick a nominee with bipartisan support.

"I have hopes that President Obama will at least try to appoint somebody who will get a huge bipartisan vote, and if he will, he's going to go down in history as a better president," Hatch told reporters in Salt Lake City. "If he doesn't, there's going to be a whale of a fight."

jmason@washingtonexaminer.com

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