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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Pre-Election Court Fight?

Congress wrapped up action on health reform with considerable dispatch in the wee hours last night. It’s generally assumed that financial regulation will be the next big issue, and one that many Democrats will relish given the likelihood that the stiff winds of public opinion will be at their backs for a change.
But it appears a very different fight may be thrust upon them pretty soon, with reports that Supreme Court Justice John Paul Stevens may retire as early as next month (when he turns 90). If that’s the case, a confirmation fight will inevitably coincide with the runup to the November elections.
Now Stevens (though appointed by Republican president Gerald Ford) is considered one of the Court’s staunchest liberals, so the confirmation process normally wouldn’t touch off the sort of frenzy on the Right you’d see if Obama were in a position to replace a conservative. But given the timing–not just the proximity to the midterms, but to the health care battle–none of that may matter. You can certainly expect the Tea Party movement and its Republican allies to use a Court fight to dramatize their claims that the Constitution is being shredded. And it’s particularly likely that the Christian Right (important to both the Tea Party movement and the GOP, but not very visible in the news media) would use the opportunity to remind everyone they’re still around, loud and proud.
The New York Times story on the probable Stevens retirement runs through the most prominent candidate for the next Court opening, with Cass Sunstein and Hongju Koh the possibilities most likely to set off a major ideological war, though the odds of either getting the nod are slim.
Given the current environment, though, the president would probably have a big fight on his hands even if he appointed a card-carrying member of the Federalist Society to the Court. After health reform, virtually anything he does will by definition be treated by much of the Right as part of his nefarious plot to turn America into Sweden, if not Venezuela. So get ready for a major rumble.

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