WASHINGTON – A leading Democratic senator warned Sunday his party could support a potentially polarizing obstruction of President Barack Obama's nominee to the Supreme Court if he names an "activist" to the bench.
Parties in opposition to a sitting president traditionally call for moderation in a pick to the country's highest court, but moderate Democrat Ben Nelson issued a blunt warning from Obama's own party that the president should not choose someone seen as out of the mainstream.
"I don't care whether they're liberal or conservative," Nelson told Fox News Sunday in an interview. "I just want to make sure they're not activist. I don't want an activist on the bench."
"I think that's the test -- will they be an activist or not?" Nelson said.
"And 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."
It is widely expected that the new president will make his first nomination to the nine-member court this week, following moderate Justice David Souter's retirement announcement.
Nelson was a member of a bipartisan group of senators -- dubbed the Gang of 14 -- who negotiated a compromise in 2005 following several divisive battles over appellate court nominations by then-president George W. Bush.
The compromise concluded that the vote-delaying tactic known as a filibuster would not be used on court nominees in all but extraordinary circumstances.
Democrats, with 59 of 100 seats, are on the threshold of a controlling "supermajority" in the US Senate, where 60 seats are needed to override parliamentary delay tactics.
But any Democratic defections could allow a filibuster to proceed.
Republican Senator John Kyl insisted that while he was against the use of a nominee filibuster, his party was keeping the door open for launching one to prevent the chamber from voting on Obama's pick if he or she is seen as deciding cases "upon his or her emotions, or feelings, or preconceived ideas."
"Hopefully the president won't nominate someone here who is so far out of the mainstream in terms of the way that he or she approaches deciding cases that we won't have to do that," he told the same Fox program.
Obama stirred up criticism from conservatives earlier this month when he said "empathy" and "identifying with people's hopes and struggles" were hallmark characteristics for a judge.
"But I think you never say never here," Kyl responded when asked whether Republicans could launch a filibuster despite the Gang of 14 pact of 2005.
"Given the fact that the president has already signaled that he wants to appoint someone who has 'empathy' and will decide cases based on that, I think you have to reserve it."
Experts widely believe Obama will choose a woman to replace Souter, joining Ruth Bader Ginsburg as the only females on the bench.
But Obama said Saturday he feels no pressure to choose according to demographics.
"What I want is not just ivory tower learning," he told C-span television.
"I want somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world works."
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