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Commentary: Court’s future in flux


The stunning upset victory for Republicans in Tuesday’s U.S. Senate election in Massachusetts markedly changes the political dynamic for President Obama, and in the process raises serious questions about his options in selecting judicial nominees, including those who might be chosen for the Supreme Court.  With more than 93 percent of the votes counted in the Bay State, GOP candidate Scott Brown had a decisive 52-47 percent lead over Democrat Martha Coakley.  The race apparently was over early in the evening.

A change in party membership of a single seat in the Senate may not seem like a seismic change in a legislative chamber still numerically dominated by the President’s Democratic allies.  But the political atmosphere in the chamber may well change markedly, with the Democrats — and the President — having to tack toward the center, or even rightward, if anything is to get done.  And that could strongly influence the choice of a successor for Justice John Paul Stevens, should he retire this summer, as is widely expected.

A 60-member majority for the Democrats (including two Independent allies) has not given them a free hand in controlling the legislative agenda — including the judicial nomination process — at any time since the new Congress assembled last January.  The fact that they could not routinely expect to summon all 60 votes to break a filibuster on any matter of serious consequence has made their dominance illusory.  Within their caucus, they are splintered ideologically, and any efforts to enlist GOP support have been largely unpromising, given the polarization in the chamber.

Democrats can now look ahead to the November elections and the seemingly increased prospect that, as Massachusetts went, so might a good many other states, with the result that the Democratic ranks could be narrowed even more.

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.

And the next ten months, of course, is the time span during which a Supreme Court vacancy may well occur.  If bipartisanship has any meaning any longer in the Senate, perhaps the President could find nominees who may have some appeal with moderate Republicans.  That almost certainly would translate as nominees decidedly more moderate in their views than the President’s first choice for the Court, Justice Sonia Sotomayor, who has taken a place comfortably in the Court’s liberal wing.  It might even be doubtful that a nominee with views aligned closely with those of Justice Stevens could get confirmed.

With President Obama still having three years to go in his term, Republicans who might be bent on obstructing any Court nominees would probably not be able to hold out long enough to prevent a centrist nominee for the Court from finally getting through.   But a nominee with an identifiable liberal record may well be doomed (assuming that the White House has any lingering interest in that type of choice).

The Massachusetts political “revolution,” if that is what it was, almost certainly will embolden the Republican caucus in the Senate.  Their members will keep prominent in their minds the fact that President Obama rushed into Massachusetts in the final weekend of the campaign, but could not rescue Coakley from a defeat that many analysts regarded as unthinkable just two weeks previously.  Whatever flaws there were in the Coakley candidacy, the final result — a Republican captured the “Kennedy seat” — is what the GOP will cherish, and from which it will draw inspiration for a renewed effort to widen the “revolution.”