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Supreme Court pick could face filibuster

May 25, 2009 12:17:15 PM PDT
Empathy isn't part of the job description for a Supreme Court justice, a top Republican says. As President Barack Obama prepares to name his pick for the high court, the Senate's No. 2 Republican said the qualifications being discussed - "emotions or feelings or preconceived ideas," Sen. Jon Kyl called them - aren't enough to justify a lifetime appointment. The Arizona Republican on Sunday wouldn't rule out a filibuster to block an Obama pick that falls outside his definition of the mainstream.

"We will distinguish between a liberal judge on one side and one who doesn't decide cases on the merits but, rather, on the basis of his or her preconceived ideas," Kyl said.

Obama, who has interviewed at least two candidates, is preparing to announce a pick to replace Justice David Souter in the coming days. Sen. Dick Durbin of Illinois, the No. 2 Democrat in the Senate, said Sunday that he has been told a choice is likely to be announced this week.

Those involved with Obama's decision suggest it could come as early as Tuesday.

In the meantime, Obama has offered hints into what he wants in a justice.

"You have to have not only the intellect to be able to effectively apply the law to cases before you," Obama said in an interview televised on C-SPAN. "But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living."

Obama also has said he wants someone who uses empathy, "understanding and identifying with people's hopes and struggles," when arriving at decisions that could influence the nation for decades.

Sen. Ben Nelson, a Nebraska Democrat who helped negotiate a compromise to avoid filibusters aimed at President George W. Bush's judicial nominees, also kept open the filibuster option against Obama's nominee.

"We don't want to have to read judges' minds. So I think that's the test - will they be an activist or not?" Nelson said. "I would hope that there wouldn't be any circumstances that would be so extreme with any of the president's nominees that the other side would feel the need to filibuster or that I might feel the need to filibuster in a case of extraordinary circumstances."

Under Senate rules, a single senator can mount a filibuster by objecting to consideration of a bill or nominee. It takes 60 votes to overcome a filibuster and move to a final vote. Democrats hold 59 votes in the 100-seat Senate with Sen. Arlen Specter's defection from the GOP and two Democratic-voting independents. One seat is open.

Obama's choice is expected to be confirmed, given the Democratic majority. But part of his political calculation is how smoothly the nominee will get through.

Kyl and Nelson appeared on "Fox News Sunday." Durbin on "NBC's "Meet the Press."


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