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Posted by on May 1, 2009 in At TMV, Politics | 0 comments

Don’t Make Assumptions On Supreme Court Picks

With word out that Justice Souter is about to hitch up the buckboard and head back to New Hampshire we have already heard speculation about his successor and how they will impact the direction of the court.

However there is an old saying about what happens when you assume, and those of us who are watching from the outside as well as those working from the inside at the White House should take it to heart.

For one thing, I would not make book on the fact that Judge Sotomayor is a lock to get the appointment. Certainly there are plenty of reasons that she would get the nomination, ranging from the historic nature of being the first Hispanic to naming a woman to the court to her strong qualifications.

But at the same time the fact that she is getting so much press right now means that the potential opposition groups are sharpening their knives and filling out their briefs to fight her, and it might be a wise strategy on the part of the White House to use her as a red herring while they concentrate on a less expected, yet equally compelling pick.

In addition, President Obama has shown a desire to try and avoid conflict as much as possible and a Sotomayor nomination would attract controversy. With Senator Specter switching to the Democrats, the rules of the Senate require that some Republican on Judiciary at least agree to sending the nomination to the floor,so that could also be a problem for a really controversial pick

Obviously if I had a good idea right now of what those names might be I would be posting them, but it is safe to say that there is a large pool of potential nominees out there and Obama might go with one of them. So for those trying to predict the candidate, be sure to consider all the names.

At the same time the Obama White House should consider the history of this particular seat. We all know that Justice Souter was chosen by President Bush 41 but turned out to be a reliable liberal vote on the court. However before him was Justice Brennan, named by President Eisenhower and yet another liberal justice.

And Democrats are not immune to this problem, before Brennan we had Justice Minton who was a conservative Justice named by President Truman. Justice Byrnes was a pick by FDR who ruled to the right and Justice McReynolds was a strong conservative named by President Wilson.

There have been exceptions of course. Conservative Justice Lurton was named by President Taft and liberal Justice Rutledge was picked by FDR. But as a general rule, this seems to be one court seat where the nominee does not always do what the President thought he would.

Just food for thought from a humble country lawyer.