Court pick could face filibuster over 'feelings'

http://news.yahoo.com/s/ap/20090524/ap_on_go_su_co/us_obama_supreme_court

By PHILIP ELLIOTT, Associated Press Writer Philip Elliott, Associated Press Writer – 2 hrs 43 mins ago

WASHINGTON – The Senate's No. 2 Republican on Sunday refused to rule out a filibuster if President Barack Obama seeks a Supreme Court justice who decides cases based on "emotions or feelings or preconceived ideas."

Sen. Jon Kyl made clear he would use the procedural delay if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs empathy from the bench. The Arizona Republican acknowledged that his party likely does not have enough votes to sustain a filibuster, but he said nonetheless he would try to delay or derail the nomination if Obama ventures outside what Kyl called the mainstream.

"We will distinguish between a liberal judge on one side and one who doesn't decide cases on the merits but, rather, on the basis of his or her preconceived ideas," Kyl said.

The White House is preparing to announce Obama's pick to replace Justice David Souter, who plans to retire back to his beloved New Hampshire when the court's term ends. Sen. Dick Durbin of Illinois, the No. 2 Democrat in the Senate, said Sunday that he has been told a choice is likely to be announced this week. Those involved with Obama's decision hint that it could come as early as Tuesday.

Obama, who has interviewed at least two candidates for the position, has offered hints into what he wants in a justice.

"You have to have not only the intellect to be able to effectively apply the law to cases before you," Obama said in an interview carried Saturday on C-SPAN television. "But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living."

Obama also has said he wants someone who employs empathy, "understanding and identifying with people's hopes and struggles," when arriving at decisions that could influence the nation for decades.

That approach drew a rebuke Sunday from Kyl, who in January told the conservative Federalist Society that he reserved the right to filibuster.

"I went on to say a lot of things about what I meant by that, and I was distinguishing between a person who is just liberal — and undoubtedly this nominee will be liberal — and one who decides cases not based upon the law or the merits but, rather, upon his or her emotions, or feelings or preconceived ideas. That would be a circumstance in which I could not support the nominee," Kyl said.

Sen. Ben Nelson, a Nebraska Democrat who helped negotiate a compromise to avoid filibusters aimed at President George W. Bush's judicial nominees, said the law alone should be the guide on whether nominees are seated. He also kept open the filibuster option.

"We don't want to have to read judges' minds. So I think that's the test — will they be an activist or not?" Nelson said. "I would hope that there wouldn't be any circumstances that would be so extreme with any of the president's nominees that the other side would feel the need to filibuster or that I might feel the need to filibuster in a case of extraordinary circumstances."

Under Senate rules, a single senator can mount a filibuster by objecting to consideration of a bill or nominee. It takes 60 votes to overcome a filibuster and move to a final vote. Democrats hold 59 votes in the 100-seat Senate with Sen. Arlen Specter's defection from the GOP and two Democratic-voting independents. One seat is open.

Obama's choice is expected to be confirmed, given the Democratic majority. But part of his political calculation is how smoothly the nominee will get through. At a time when his agenda is packed with big domestic items and he needs help from both parties, Obama may not want to spend political capital on a more contentious choice.

Six people are known to be under consideration by Obama: U.S. Appeals Court judges Diane Wood and Sonia Sotomayor, Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and California Supreme Court Justice Carlos Moreno.

The president has been pushed by Sen. Barbara Boxer, D-Calif., and others to name a woman to the court. Only one of the nine justices — Ruth Bader Ginsburg — is a woman.

"Frankly, if it were reversed, I would be saying, appoint a man. You just need that point of view," Boxer said. "But, of course, it has got to do be the best possible person and we think there are so many great qualified women out there."

Kyl and Nelson appeared on "Fox News Sunday." Boxer appeared on CNN's "State of the Union" and Durbin on "NBC's "Meet the Press."