GOP senators who will help shape the review of President Barack Obama's next nominee to the Supreme Court said Sunday he must pick someone with "mainstream" judicial views to avoid a potential filibuster.
Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, wouldn't rule out using that tactic to "protect the Constitution" from a high court nominee who, he said, would make law rather than interpret it.
Whether there's a drawn-out fight over a successor to retiring Justice John Paul Stevens, the leader of the court's liberal wing, "is in the president's hands," Sessions said. Stevens plans to step down when the court finishes its work for the summer.
Added Arizona Sen. Jon Kyl, the Senate's second-ranking Republican and a committee member: "I'm not going to take it off the table. But I think it can easily be avoided."
That led a committee Democrat, Sen. Charles Schumer of New York, to claim that "it's just about a certainty that the president will nominate someone in the mainstream, so the likelihood of a filibuster is tiny."
Kyl said it would take "extraordinary circumstances" to compel a GOP filibuster. Republicans are likely to echo those terms — judicial mainstream and extraordinary circumstances — during the confirmation process. Just as likely is disagreement between Republicans and Democrats over how the nominee's views fit those terms.
Sen. Patrick Leahy, the chairman of the Judiciary Committee, predicted that Obama will nominate Stevens' replacement in time for hearings to wrap up this summer and for the nine-member court to be at full strength for the fall term.
"He wants somebody who has a sense of what real life is in America," said Leahy, D-Vt. Calling a filibuster "the lazy person's way out," the senator said he didn't think there would be one.
In 2005, when Democrats were in the minority in the Senate and some of President George W. Bush's picks for the federal bench were stalled, a group of 14 centrist Republicans and Democrats agreed not to prevent a vote on judicial nominees except under extraordinary circumstances. Exactly what constituted such circumstances was not part of the compromise.
Now in the minority, Republicans fiercely opposed Obama's first Supreme Court nominee, Sonia Sotomayor, last year. The Senate voted 68-31 — all but nine Republicans were against her confirmation — in her favor.
With the election in January of Sen. Scott Brown, R-Mass., erasing the Democrats' filibuster-proof majority, Republicans could unite to block a vote on the next confirmation if all 41 Republicans were to agree.
"If we have a nominee that evidences a philosophy of judges know best, that they can amend the Constitution by saying it has evolved, and effectuate agendas, then we're going to have a big fight about that because the American people don't want that," Sessions said.
Sessions and Leahy appeared on NBC's "Meet the Press" while Kyl and Schumer were on ABC's "This Week."
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