If two U.S. Supreme Court vacancies materialize this spring, they may have the same impact on the nation's capital that two heavy snowfalls have had this month: gridlock, paralysis and frayed tempers.
Stories raising the possibility that justices John Paul Stevens and Ruth Bader Ginsburg may leave at roughly the same time have suddenly become part of the Washington conversation, already fueling nightmare scenarios of dragged-out battles between a weakened President Barack Obama and a fiercely contentious Senate over possible replacements.
"Republicans are out for blood, and Democrats are out for a fight," said Steve Wermiel, professor at American University Washington College of Law. "We're close to a peak of partisan wrangling in Washington."
Speculation about potential nominees has already begun, with Solicitor General Elena Kagan and Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit winning the most mentions at this early stage. Secretary of State Hillary Clinton is also the subject of growing speculation as a possible nominee.
That said, many Court-watchers still don't believe two concurrent vacancies are likely.
"There's a very express consensus within the Court that two vacancies not occur simultaneously, barring a medical tragedy," said David Garrow, a high court scholar and senior research fellow at the University of Cambridge. "And there's no new evidence that Justice Ginsburg is at all considering departing."
WHO WILL GO?
The latest guessing game began when ABC News reported on Feb. 4 that the White House was preparing for the possibility of two vacancies by refreshing and researching its list of potential candidates. The Wall Street Journal also quoted unnamed officials asserting that Ginsburg's apparently successful battle against pancreatic cancer last year nonetheless has "made preparations for her retirement prudent."
Even though Ginsburg often appears frail, those who know her see no change in her expressed desire to stay on the Court until she reaches or exceeds the age of Louis Brandeis, her judicial idol, when he retired. Ginsburg is 76, and Brandeis was 83 when he left the Court in 1939. She is still an active participant at oral argument and has authored more majority opinions so far this term than any of her colleagues.
"She looks great and shows no sign of backing off her vow to stay until she can't do the job," said Georgetown University Law Center professor Wendy Williams, who is writing a biography of Ginsburg.
For his part, Stevens, who will turn 90 in April, has done nothing to discourage predictions that he will leave this term. He confirmed last year that he had hired only one clerk for next term -- the number that retired justices are allowed.
Stevens' halting reading of his powerful dissent in Citizens United v. FEC on Jan. 21 was for many the first sign that the long-serving justice may be faltering. "Most people's 'bad days' don't include the inability to correctly pronounce a significant number of basic words," Garrow said. "The Supreme Court press corps largely gave him a pass on that."
So why does the notion of two possible vacancies at once seem to be sticking? Partly because of the bitter divide in the Senate. Even with a 60- or 59-vote Democratic majority, Obama has had a hard time moving his agenda, and the fall elections may leave him with an even smaller margin. As a result, the thinking goes, Ginsburg might leave sooner than planned to guarantee that Obama can replace her without the kind of rancor or divisive filibuster he might face next year.
University of North Carolina School of Law professor Michael Gerhardt, an expert on the nomination process, thinks that's not a major concern. "It would be very hard, if not practically impossible, for Republicans to filibuster a Supreme Court nominee," he said. "Supreme Court nominations tend to be different."
But the poisonous climate in the Senate today may have changed that, Wermiel said. "We all believed you wouldn't dare filibuster a Supreme Court nominee because everyone recognized that the Supreme Court needs to do its work," he said. "That assumption may be less true than it once was."
THE REHNQUIST THEORY
Another theory argues that, in a strange way, two vacancies at once might actually help Obama push through at least one liberal nominee. President Ronald Reagan perfected that strategy from the conservative side in 1986 when Chief Justice Warren Burger retired. Reagan nominated William Rehnquist, then an associate justice, to move up to chief and named Antonin Scalia to replace Rehnquist as associate justice. That meant hitting the Senate with two nominations at once. The Senate could only stomach one bruising battle that summer, it appeared, so Rehnquist took the heat while Scalia, who arguably should have troubled Democrats even more, sailed through without a dissenting vote.
That's why Curt Levey, executive director of the conservative Committee for Justice, is not relishing the prospect of two vacancies. "You [Obama] almost get a free pass on one of them, if there are two vacancies at the same time. You can appoint one who's solidly liberal and one who's moderately liberal. If conservatives go after both, you can seem unreasonable."
Wermiel, though, wonders if Obama is particularly interested in placing a strong liberal on the Court, much less two. "I haven't had the feeling that he's trying to get another Brennan or Marshall on there," Wermiel said, referring to the late liberal lions William Brennan Jr. and Thurgood Marshall. Wermiel is co-author of a forthcoming biography of Brennan.
Still, locating possible nominees on the political spectrum is already under way. Conservative commentator M. Edward Whelan III, a former Scalia clerk, has already pronounced Kagan a "wild card" who would probably be "largely indistinguishable" from Ginsburg. By contrast, Whelan said on National Review Online, Garland "has earned the respect of folks across the political spectrum for his judicial craftsmanship in his 13 years on the D.C. Circuit. ... He may well be the best that conservatives could reasonably hope for from a Democratic president." Whelan's highest praise of Garland may be that his nomination could "make great strides toward ending the judicial wars."
Other factors may also influence Obama's choices. A current Cabinet member who has already been vetted and confirmed may be an easier sell -- such as Homeland Security Secretary Janet Napolitano or Interior Secretary Ken Salazar. With Sonia Sotomayor on the Court as the first Hispanic justice, other minorities, such as Asian-Americans or Native Americans, might seek their turn.
Former Yale Law School dean Harold Koh, whose parents were Korean, was long viewed as a top high court prospect. But when Obama nominated him as State Department legal adviser, critics painted Koh as an internationalist willing to use foreign laws and rulings to interpret the U.S. Constitution. He was finally confirmed, 62-35, last year. But unless he was picked as the lightning rod candidate in a two-nominee package, in the manner of Rehnquist in 1986, Koh's chances now appear slim.
In spite of the challenges ahead in getting a Supreme Court nominee -- or two -- confirmed, Nan Aron of the liberal Alliance for Justice struck an optimistic note. "Let's be positive," said Aron, a veteran of confirmation wars. "Two vacancies on the Court gives the president a historic opportunity to appoint justices who will begin to change the national discussion around critical issues affecting the environment, consumer protections and civil rights."