Legal News

Filibuster Of Stevens Replacement ?Unlikely,? Say GOP Senators

By Ashby Jones

When President Obama announces his choice to replace the retiring Justice John Paul Stevens, we won’t be entirely surprised to read about attacks from the right — concerns about abortion, “judicial activism,” and the like. As there was with Obama’s first pick — Sonia Sotomayor — there will be controversy.

But for now, at least judging from the tenor displayed Sunday on the talk-show circuit, Senate Republicans don’t seem all that revved up, all that eager to come out swinging. Perhaps we’re misinterpreting their remarks Sunday, but they seem to be signaling that they might be okay with any of the five names getting mentioned most prominently — Solicitor General Elena Kagan, Seventh Circuit judge Diane Wood, D.C. Circuit judge Merrick Garland, Homeland Security Secretary Janet Napolitano and Michigan Governor Jennifer Granholm. Click here for the WSJ story on the Senators’ Sunday remarks.

When asked on “This Week” if any of those five possible nominees seemed overly ideological, Sen. Jon Kyl (R., Ariz.) said he thought they were all “nominally qualified.”

Others who spoke on the topic Sunday didn’t rule out the possibility of a filibuster, but certainly didn’t appear to think one was imminent. Kyl (pictured), appearing on ABC’s “This Week,” said he believed that a Republican filibuster over any nominee was “unlikely,” but that he would “never take it off the table.” The judiciary panel’s ranking member, Sen. Jeff Sessions of Alabama, said Republicans believed “every power should be utilized to protect the Constitution” in the event that Mr. Obama were to nominate a judge outside the judicial mainstream. That said, Sessions hoped that no filibuster would prove necessary.

“What I object to and I think my colleagues would object to is somebody that comes in with preconceived notions about how particular cases should be decided,” Kyl said.

But again, there will be controversy. Which brings us to this WSJ story out Monday on Elena Kagan by Supreme Court correspondent Jess Bravin. Were she Obama’s pick, reports Bravin, controversy would likely spin around her role in a gay-rights lawsuit. In 2005, Kagan was one of 40 Harvard law professors who signed a friend- of-the-court brief urging the Supreme Court to uphold an appellate ruling that permitted law schools to limit military access to campus recruiting events.

At her confirmation hearing last year for solicitor general, opponents said Kagan’s position could disqualify her from office.

“Ms. Kagan’s extreme rhetoric makes it highly likely that she also favors same-sex marriage, both as a matter of policy and as a supposed federal constitutional right,” officials from the American Family Association, Focus on the Family and other conservative groups warned in a letter prior to her solicitor general confirmation hearings last year.

Full post as published by Law Blog - WSJ.com on April 12, 2010 (boomark / email).