If Ginsburg Retires, Obama Faces A Tough Choice

President Obama has tried to remain true to his campaign message of bipartisanship. But he's struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It'll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer. Ginsburg, 75, has no apparent plans to leave the court, and she may well serve out Obama's term. (She survived a 1999 bout with colon cancer without missing a day on the bench.) But both she and another liberal justice—88-year-old John Paul Stevens—are the oldest and thus deemed the most likely to step down in the next four to eight years. When that happens, Obama will have a tough choice to make, one that seems guaranteed to upset a good portion of the country.

Obama has given some hints of what he's looking for. He has cited as a model justice Earl Warren—whom liberals love and conservatives regard as an activist social reformer with no place on the bench, at least not in today's world. At a minimum, Obama's backers will be looking for him to appoint someone as liberal as the justice he replaces. If it's Ginsburg, the consensus is that Obama will have to pick another woman. He might also want to choose the first Latino justice, or perhaps an African-American, which might help to dilute conservative opposition; Republicans might hesitate at taking a harsh stance against, for instance, the first nominated Hispanic.

Conservatives concede that the Democrat-led Senate would almost certainly confirm any Obama nominee, absent any damaging revelation. But the more liberal the nominee, the more contentious the confirmation hearings will be. The president's stance as a consensus builder might suffer if his first choice seems likely to support liberal causes such as gay marriage.

Conservative critics sense a preference for liberal "judicial activism" in Obama's claim that "the truly difficult" legal cases "can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." He voted against Chief Justice John Roberts and Justice Samuel Alito, complaining that the two Bush appointees had sided with "the powerful against the powerless." When it's Obama's turn to pick a nominee, he'll either sacrifice some political good will or he'll upset his base. There's not much middle ground.