The Note, 5/1/2009: Sout-ing Up — Will having 60 votes give Obama more flexibility — or less?

By RICK KLEIN Welcome back to the campaign — the one that never really left, anyway. All those thoughts of quick movement on domestic policies — it was nice to think Congress might find the time. Justice David Souter’s retirement is unlikely to change the court’s ideological makeup. But it vastly reorders the political landscape, for as long as it will take to give the Supreme Court nine justices again. Particularly with Sen. Arlen Specter, D-Pa., in the fold, 60 votes is unlikely to be a problem for President Obama’s nominee. But oddly, the addition of Specter and, later, Al Franken, may give Obama less flexibility in choosing a justice: From the left’s perspective, he’ll have no excuses not to go with a confirmed and committed liberal voice. At stake here will be more than one justice and one confirmation vote: This is very unlikely to be President Obama’s last nominee, and it surely won’t be his last big venture where the Senate will render judgment. “Welcome to the White House,” ABC’s George Stephanopoulos said on “Good Morning America” Friday. “It definitely is a test for the Obama administration, for the president. It will reveal a lot about his feelings, his ideology, where he wants to take the court, where he wants to take the country.”  “You expect them to want to have someone in place before the court’s next term begins in October,” he said. “I would say the leading candidate — if there is one — is Judge Sonia Sotomayor.” Look for a fight pitting a party that’s still seeking a path forward against one that is still heady with this newfound power. (And one sprinkled with reminders of what the other side was saying back when President Bush was leaving his stamp on the court.) This comes at the administration on a week that the White House learned something about unwieldy governance. Between an Air Force One photo-op and an off-message vice president, this job involves some detours — and the White House had its own route in mind for the summer and fall. “The Souter vacancy lands amid one of the most crowded political environments in modern history with Obama seeking to stimulate the economy out of recession, restructure the American auto industry, draw down American troops in Iraq while ramping up in Afghanistan, reshape how the United States is viewed by the international community and begin preparations for coming congressional debates over health care and the capping of carbon emissions in the fall,” Washingtonpost.com’s Chris Cillizza writes. “Add a Supreme Court opening to that mix and it’s easy to see why even the Obama administration’s vaunted ability to deal with a number of major challenges all at once will be severely tested.”  You don’t get to time these things: “Mr. Obama is getting his first court opening early in his tenure. President George W. Bush had no seats to fill until deep into his second term,” Peter Baker and Jeff Zeleny write in The New York Times. ” While Democrats will be happy to have a chance to put another liberal on the court, a confirmation battle could prove to be one more challenge for a president already engaged on multiple fronts to pass health care, energy and other legislation. Mr. Obama would need to name a nominee early enough for the Senate to hold hearings and vote by the beginning of October to fill the seat in time for the next term.”  (And even before the drumbeat for “timely confirmation” starts for a nominee that’s not close to being named — recall that senators Obama, Biden, and Clinton were among those who supported a filibuster of Justice Samuel Alito. Jeff Zeleny’s long-ago Chicago Tribune lede: “Sen. Barack Obama said he would vote Monday to filibuster Judge Samuel Alito’s confirmation to the Supreme Court, but he conceded the effort would be futile and criticized Democrats for failing to persuade Americans to take notice of the court’s changing ideological face.”)  “A battle over a Supreme Court nomination could add significant weight to an already heavy congressional agenda, which includes action on health care and possibly climate change later this year,” The Wall Street Journal’s Jess Bravin and Evan Perez write. “To have a new justice in place by the beginning of the court’s term in October would mean conducting a Senate confirmation process at the same time as Congress would debate the other big legislative issues and face deadlines for action on spending bills.”  The name game: “Longtime court watchers have speculated that if Obama made an early pick for the Supreme Court, he would look seriously at appeals-court judges Diane Wood, a 58-year-old Bill Clinton appointee who, like Obama, taught at the University of Chicago Law School,” Peter Canellos and Milton J. Valencia write in The Boston Globe. “Other names thought to be on Obama’s short list include former Harvard Law School Dean Elena Kagan and former Yale Law School Dean Harold Hongju Koh, both of whom have been appointed to positions in Obama’s administration. Massachusetts Governor Deval Patrick, a former assistant US attorney general, has also been mentioned as a possible Supreme Court candidate.”  “Souter’s early decision gives the Obama Administration plenty of time to find a replacement, and it’s unlikely the next justice will be a white man,” ABC’s Jan Crawford Greenburg reports. “Several women top the list, including the highly regarded Chicago-based federal appeals court Judge Diane Wood, Solicitor General Elena Kagan, New York-based federal appeals Sonia Sotomayor, and Stanford Law School professor Pam Karlan. Another intriguing prospect — outside the judicial monastery and the rarefied world of academia — is Michigan Gov. Jennifer Granholm.”  “White House advisers have been drafting lists of potential replacements virtually since Obama took office, and the list is said to also include Stanford University law professor Kathleen M. Sullivan, Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit, Michigan Gov. Jennifer M. Granholm and Georgia Supreme Court Chief Justice Leah Ward Sears,” Robert Barnes writes in The Washington Post.  “Among those who might make the list of replacements: incoming solicitor general Elena Kagan, formerly the dean of the Harvard Law School,  Cass Sunstein, a brilliant constitutional law prof who now works at Obama’s Office of Management and Budget, Secretary of State Hillary Clinton, appelate judge Diane Wood,  and Leah Ward Sears, the chief justice of Georgia’s Supreme Court. A dark horse might be Judge Nicholas Garaufis of the Eastern District of New York,” The Atlantic’s Marc Ambinder reports.  Think this will be Obama’s last shot at this? “At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court’s age range, with five justices older and just three younger,” points out NPR’s Nina Totenberg, who broke the retirement story Thursday night.  Silence from the White House, thus far: “The President has not received a formal communication from Justice Souter and he deserves the right to make his own announcement,” an aide e-mails ABC’s Ariane DeVogue. With 60 in sight — think there might be a little pressure from the left? “This legislative magic bullet will force Democrats to fulfill their policy promises and potentially commence an era of dominance, or they will fail and be annihilated at the polls,” David Sirota wrote in his column, at Salon.com — posted hours before the Souter news broke. “In command of the White House, the autocratic House of Representatives, and soon a filibuster-proof Senate majority, Democrats will have total authority to do whatever they want, and no scapegoat to fault.”  The White House still has swine flu to manage — plus that other potential natural disaster that involves the vice president’s mouth. (What’s easier to manage — the bureaucracy, a possible pandemic, or Joe Biden’s messaging?) Don’t panic! He made it through the first 100 days . . . “On Day 101, the vice president, well, took a nosedive when it came to the government’s talking points on air travel during the swine flu outbreak,” per the AP’s Nancy Benac.  “The common-sense course of action was reiterated by Mr. Obama at his news conference. Cover your cough or sneeze. Wash your hands frequently,” The Washington Post editorial reads. “And if you are sick, stay home. Same for your child. Mr. Biden’s imprudent words could be taken as a green light for everyone to abandon the Metro, pull children out of school and avoid travel.”  “The U.S. travel industry was quick to complain about the comments, and the White House scrambled to respond. It first issued a statement repackaging the vice president’s words, and later offered a shrug and an apology,” Tribune Co.’s Mark Silva and Christi Parsons write.  Despite an initial clarification, “That, of course, is not what the vice president said. In fact, he specifically suggested travel to and from Mexico wasn’t the issue — the problem was being in a confined space,” per ABC’s Jake Tapper.  “Joe suffers severe hoof-in-mouth disease, which is incurable but, like the disease formerly known as swine flu, rarely serious,” Wesley Pruden writes in the Washington Times.  The New York Daily News editorial: “If you are sick, stay home. If you are sick, stay out of crowded, enclosed spaces like airplanes and subways. Cover your mouth when you have to cough. And, if you’re Joe Biden, keep your mouth shut at all times.”  Andy Borowitz, at Huffington Post: “Obama Orders Emergency Quarantine of Biden.”  Close to home: “White House Press Secretary Robert Gibbs announced that an administration staffer exhibited flu-like symptoms while traveling in Mexico City as part of the advance security team for Energy Secretary Steven Chu,” per ABC’s Karen Travers and Sunlen Miller. “Three members of this individual’s family tested positive for the H1N1 virus, ten days after the staffer returned home. The administration staffer tested negative, which Gibbs said was ‘likely because so much time had elapsed since the onset of his own symptoms that they would not show up in the test.’ “  Some friends, some enemies — the president names names in the Chrysler deal: “The administration’s efforts to avert a bankruptcy filing were frustrated by some hedge funds, which Obama referred to as ‘a small group of speculators,’ that rejected the government’s final offer to settle their claims against Chrysler out of court,” per The Washington Post’s Peter Whoriskey, Brady Dennis and Kendra Marr.  Not done with cars — not even close: “The administration’s move to sharply boost its investment in Chrysler, which it had warned could not survive on its own and might have to liquidate, suggests that the government is also likely to invest billions more in a healthier General Motors Corp.,” per the Detroit News’ David Shepardson.  The New York Times’ Peter Baker gets Milbankian: “He may not have set out to be a car salesman — or a banker for that matter, or an insurer. But suddenly Mr. Obama is all of those. And more.”  Whither/wither the GOP: “The thing is, though, that input from an effective, constructive opposition party would be good at this pivotal moment in the nation’s history. If only such a party could be found,” Eugene Robinson writes in The Washington Post.  Is the party tent too narrow — or too broad? “At issue is whether a demoralized Republican Party should be emphasizing breadth or depth in terms of ideology, messaging and geography,” per ABC News.  Anything missing from the latest branding effort? Ben Smith’s Politico headline: “GOP recasts brand, sans wedge issues.”  Welcome back, Anita Dunn. ABC’s Jake Tapper: “Dunn was originally President Obama’s first pick to be communications director. She turned down the job to spend more time with her family, but after Moran announced she was leaving to become the chief of staff to Commerce Secretary Gary Locke, the President asked Dunn to re-consider her original rejection of the job offer.”  Catching George Stephanopoulos’ eye: Former secretary of state Condoleezza Rice, grilled on interrogation decisions.  Now he tells us: “There is no doubt that he changed the race on the war, on health care and on challenging special interests and lobbyists. But even with all that he probably should not have run,” Joe Trippi told ABC Thursday, on John Edwards’ 2008 candidacy.  “If he had come out and dropped out of the race particularly early, I think a lot of voters would have then taken a good, fresh look at Hillary Clinton,” Mark Penn tells ABC’s Kate Snow, on “GMA” Friday. Shaking up Senate life (or not): “Kentucky Secretary of State Trey Grayson (R) has formed an exploratory committee to run for Senate, a move that would appear to indicate that a retirement announcement from Sen. Jim Bunning (R-Ky.) is imminent,” Roll Call’s John McArdle writes. “But late Thursday, Bunning’s office said Grayson’s decision would not affect the Senator’s re-election plans. Bunning spokesman Mike Reynard said Bunning ‘has every intention of running’ for re-election.”  Former friends: “Hell hath no fury like a party scorned. That’s what Sen. Arlen Specter (D-Pa.) is learning two days after bolting the Republican Party in advance of a difficult reelection fight next year,” The Hill’s Reid Wilson writes. “The National Republican Senatorial Committee has launched robo-calls associating Specter with former President Bush and kicked off a website attacking the Pennsylvania senator, who this week became the first Republican ever to switch directly to the Democratic Party.”  Everything you need to know (and a whole lot more) on the White House Correspondents’ Dinner — from Tammy Haddad and company.  The Kicker: “The advice he is giving family members is the same advice the administration is giving to all Americans:  that they should avoid unnecessary air travel to and from Mexico.” — Biden spokeswoman Elizabeth Alexander, take one in explaining the vice president’s remarks. “I understand what he said. I’m telling you what he meant to say.” — White House Press Secretary Robert Gibbs, take two. Don’t miss “Top Line,” ABCNews.com’s daily political Webcast, hosted by Rick Klein and David Chalian, at noon ET. Friday’s guests: Rep. Kevin McCarthy, R-Calif.; and ABC’s George Stephanopoulos. Follow The Note on Twitter: http://twitter.com/thenote For up-to-the-minute political updates check out The Note’s blog . . . all day every day:

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