Lyle Denniston, veteran Supreme Court watcher and reporter, said the Brown victory Tuesday in Massachusetts might just derail President Obama's attempts to replace the possibly-retiring Justice John Paul Stevens with another die-hard liberal:
Even putting aside the November outlook, the next ten months in the Senate may bring an increase in partisan rancor, and a rising timidity even among some Democrats about taking risks to support an agenda that now seems politically tarnished. And, while most legislative observers will be watching for signs of trouble for health care reform and energy legislation, the processing of nominees to the federal courts will be another arena of likely difficulty.
If the message from last night's election is, indeed, that Americans really do not appreciate having radical social and economic policies rammed down their throats from Washington, D.C., then Denniston could be correct. There's an easy example that comes to mind. If Americans sense that a liberal nominee would likely become a vote in favor of forcing same-sex marriage on the country by way of judicial fiat, then I expect that the political damage to the president for making such a nomination might make the Brown tsunami pale in comparison.
On the other hand, and using the Sotomayor confirmation hearings as an example, nominees are pretty adept at sounding like strict constructionists on all the right issues while condemning judicial activism. But it would seem that at least some potential nominees with liberal, pro-gay track records – like Chai Feldblum and Elena Kagan — have overnight become at least somewhat riskier potential nominees for President Obama.
If Stevens intends to retire at the end of the Supreme Court's term in June – he'll probably announce that in a couple months — it would bring this issue front and center only a few months before November's general election. Then we'll see if there's been a "Brown-out" effect on the president's nomination strategy.
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