Lines in the sand

WASHINGTON-During the Senate Judiciary Committee's initial hearing on President Obama's first judicial nominee last month, Republicans committee members expressed their disdain for that nominee's liberal judicial philosophy by not showing up (see "GOP boycott").

But these same Senate Republicans have already signaled that they will not go AWOL as Obama begins the process of selecting the next member of the nation's highest court.

Just days after Justice David Souter's retirement announcement opened up a Supreme Court vacancy, Republican lawmakers have begun drawing lines in the sand when it comes to what they expect to see in an Obama pick.

But the question remains-with the recent defection of Sen. Arlen Specter of Pennsylvania to the Democrats-will the GOP line be washed away by the formidable tide of an imposing Senate majority by the Democrats?

The biggest symbol of the GOP's willingness to fight in the upcoming confirmation process came with this week's announcement that Sen. Jeff Sessions, R-Ala., would take over Specter's seat as the top ranking Republican on the Senate Judiciary Committee.

Sessions will now be the Republican's point man once a nominee is named. He brings more conservative credentials to the post and-after being selected over other senior Republicans on the committee-his choice is a clear sign that the GOP aims to play tough with Obama's pick. Sessions is pro-life, opposes same sex marriage, and-like many conservatives-adheres to the view that judges ought to stick with what the Constitution says when making rulings.

"I don't mind tough questioning of a nominee," Sessions told reporters on Monday.

In fact, Sessions knows what it is like to be on the receiving end of such questioning-more than 20 years ago he saw his own nomination to become a U.S. District judge go up in smoke when the Judiciary Committee rejected him after some Democrats accused him of being racist. Ironically, Specter voted against his future Senate colleague in that 1986 vote.

Now, 23 years later, Sessions, a former U.S. attorney, takes over Specter's judiciary post.

Many conservatives are worried that Obama will nominate an activist judge who believes in a changing Constitution (see "Bench Press" from the April 25, 2009, WORLD).

After Souter retired, Obama reiterated a campaign pledge to seek a nominee who displays empathy: "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."

But, in the GOP's second warning to Obama this week after Sessions' promotion, Senate Minority Leader Mitch McConnell, R-Ky., took to the Senate floor on Tuesday promising to fight a nominee who puts personal preferences over constitutional law: "Any judge who pushes for an outcome based on their own personal opinion of what's fair undermines that basic trust Americans have always had and should always expect in an American court of law. Americans don't want judges to view any group or individual who walks into the courtroom as being more equal than any other group or individual."

Despite promises not to give Obama's nominee a free pass, Republicans still face an uphill battle. Democrats hold 59 seats in the Senate while Republicans hold 40. But those 40 senators, if Obama's pick is too far to the left, could bring the debate to the public arena where many conservatives agree that support is not strong for activist judges.

"Americans want the Supreme Court to make decisions based on the Constitution and not on some lawless standard that puts identity politics before the law," said Judicial Watch President Tom Fitton.

Meanwhile, as judicial experts continue to predict that Obama will nominate a women, the Gay and Lesbian Victory Fund has thrown their own Supreme Court candidate into the ring-asking on its website that Obama nominate the nation's first openly gay justice by selecting Kathleen Sullivan, a former dean of Stanford Law School.