William Saunders, Senior Vice President of Legal Affairs at Americans United for Life wrote a comprehensive review of potential SCOTUS nominees to replace retiring Justice John Paul Stevens for the American Principals Project.
He writes this with a disclaimer:
It must be admitted “up front” that no one (outside a tight inner circle in the White House) knows who will be nominated, and the chance of that person being confirmed depends a great deal on who that person is. If John Paul Stevens were nominated today with, hypothetically, a record as an appellate court judge similar to that he actually had on the Supreme Court, he would be a long-shot. John Roberts, however, would still be confirmed. Why? One is evidently an ideologue (opposing even a ban on partial-birth abortion); the other isn’t. Recall that John Roberts was “a lawyer’s lawyer”, one respected “on both sides of the aisle,” and by those with different political philosophies, as a brilliant and fair-minded attorney.
He then also writes about the process that the Senate must go beyond a preliminary evaluation of a potential justice’s record, but has to perform an exhaustive one. What will they be looking for? Evidence that a jurist seeks to “interpret an ‘evolving constitution’ in accordance with his own policy preferences.” Similar to what we saw in Wisconsin today with a federal judge striking down the non-sectarian National Day of Prayer. who disregarded in his decision previous case law and national history. I obviously disagree with his interpretation of the establishment clause.
Saunders further explained what the role of the Senate, in particular, the Republican minority should be:
The job of the Senate, and particularly perhaps the Republican minority, is to explore a nominee’s judicial philosophy, and to reject him unless he supports a view of judicial restraint in line with the intent of our Founding Fathers, one that lets the people govern themselves. And that brings us to the other major political development since the Sotomayor nomination: The election of Scott Brown to replace the deceased Senator Ted Kennedy of Massachusetts. (Not “Ted Kennedy’s seat,” as Brown said, but “the people’s.”)
With that election, the Republicans have 41 votes in the Senate, and they can, if they are able to maintain unity, mount a successful filibuster of a nominee who embraces judicial activism. I think the problem of judicial activism is so grave that I would go so far as to say it is their Constitutional duty to do so.
The Senate can’t get a nominee through on a reconciliation vote. I’d encourage you to read his entire review as he looks at DC Circuit Court of Appeals Judge Merrick Garland, Solicitor General Elena Kagan, Secretary of Homeland Security Janet Napolitano, Michigan Governor Jennifer Granholm, and 7th Circuit Court of Appeals Judge Diane Wood (whom he says would and should garner the most opposition). On his list he thinks that Garland would be the best possible nominee for the Obama Administration and would encounter the least resistance. He ends by saying, “Whoever it is, I hope the Senate, through its questioning of the nominee, will give the American people a lesson in the proper civic role the courts are supposed to play in American democracy.”
