By Daniel Klaidman
Here's something people keep asking about the Supreme Court vacancy: since the Obama White House knew for many months that there was a very good chance Justice John Paul Stevens would retire this term, why wasn't it ready to go with a nominee right away? Fair question: President Obama runs an efficient, disciplined shop and, since his team has already gone through one nomination and confirmation, one might reasonably assume they'd be able to roll out No. 2 lickety-split. We know that when Sonia Sotomayor was picked, Obama interviewed at least three other candidates, all of whom (Elena Kagan, Diane Wood, and Janet Napolitano) are on the current shortlist. Merrick Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit, wasn't interviewed but is well known to a number of the president's closest advisers.
The answer, based on conversations with administration officials familiar with the selection process, comes down to tactics and prophylactics. First, any White House would want to make sure its nominees were subjected to the "public vet." They've already been scrutinized by the FBI and a team of White House lawyers and political operatives for every imaginable transgression or embarrassment. But until you see how the public, the media (mainstream and blogosphere), the interest groups, and the Hill react, you don't know don't know how safe your nomination will be. Hence the imperative of leaking the shortlist first. There are two advantages to this time-honored ritual: (1) the possibility of reporters ferreting out hidden land mines and (2) should you know the candidate has a vulnerability, airing it publicly over several weeks may inoculate him or her. The longer it's out there, the more likely it will be discounted by the market.
But a knowledgeable administration official tells NEWSWEEK that in the present case the overriding reason to wait a decent interval before announcing the nomination is to limit the amount of time the Republican opposition can attack and soften up the nominee. In terms of timing, the sweet spot would be enough time to ensure a hearing before the August recess but not so much time that the nominee would be "flopping around in the sun," as NEWSWEEK’s source put it. That means to expect a nomination somewhere between May 1 and 15, which would set up hearings in late June or early July, according to the source, who would not be named discussing any aspect of the selection or confirmation process.
In the end, the timing and tactics are guided by one imperative: minimize any surprises. Veterans of the SCOTUS wars have too many memories of nominations gone bad (mostly on the GOP side—Bork, Thomas, Souter) not to proceed carefully and methodically.
Watch NEWSWEEK's Race for the Robe, a continuously updated ranking of potential nominees to replace Stevens.
See a gallery of Supreme Court "firsts," nominees who broke barriers on the high court.