President Barack Obama is expected to name his choice to replace retiring Supreme Court Justice David Souter within days, but the confirmation process already has become fiercely partisan. From taxes to national security to the environment there is probably nothing that so engages the ideological left and right as a Supreme Court confirmation battle. The stakes are too high for the public debate to dissolve into partisan potshots.
If senators restricted themselves to evaluating a nominee's objective qualifications rather than teasing out their views on hot-button social issues, the process would become much more reasoned and responsible. But it isn't likely to change in the short run even with Obama reaching across the aisle earlier this month and including Senate Minority Leader Mitch McConnell, R-Ky., and Sen. Jeff Sessions, R-Ala., at a bipartisan meeting to discuss the court vacancy.
Obama has made it clear that in addition to tapping someone with top legal credentials, he wants a nominee who has "empathy" and knows "how our laws affect the daily realities of people's lives." In many ways, the president is describing the justice who is retiring. Souter is a humane and empathetic jurist who consistently rules as if he sees the world through the eyes of those who have been wronged. Republicans like to call this "activist," which can be a pejorative label for compassionate.
The partisan fights over court nominees are often pointless, because justice's records on the court can turn out to be significantly different than anticipated. President Dwight Eisenhower was looking for a conservative when he appointed as chief justice former California Gov. Earl Warren, who turned out to be one of the court's most famous liberals. Souter was nominated by President George H.W. Bush, who had been looking to pull the court to the right. It did not work out that way.
Yet as speculation builds over the president's choice, Republican leaders in the Senate already are gearing up for a fight. They have publicly discussed a possible filibuster, without bothering to wait for the president to name a nominee. They would be wise to hold that thought and let the president make his announcement before threatening to block confirmation.
Republicans are worried that the balance of the court, which has tilted to the conservative side since the departure of centrist Justice Sandra Day O'Connor, will swing back with Obama as president. But elections matter, and any president — Republican or Democrat — is entitled to some leeway in filling court vacancies as long as their selections have appropriate legal credentials and experience. While Obama's replacement for Souter isn't likely to affect the court's balance in the near term, the new justice could be on the court for a generation or more, long after Obama leaves office. There is no predicting how over time Obama's nominee will alter the legal landscape on such politically combustible issues as abortion, gun control and the separation of church and state.
For a lifetime appointment to the Supreme Court, it is reasonable to fully vet the legal career of nominees to ensure that they have upheld the highest standards of the profession, and to probe whether they have views that are outside mainstream legal thinking. Beyond that, the president deserves some latitude.