Second appointment will not reshape court

President Obama gets a rare opportunity. He will appoint two Supreme Court justices in the first half of his first term in office. Last year, the nominated Justice Sotomayor to the court. Soon, he will announce his nominee to replace Justice John Paul Stevens.

But don't think of this as an opportunity to reshape the court. Sotomayor's legal reasoning is not expected to vary significantly from that of Justice Souter, whom she replaced. Stevens' successor is likewise unlikely to shift the court's ideological center. If reports of the "short list" Obama is considering are accurate, the president will opt for a "safe" nominee whose hearings will avoid a politically damaging fight. It's more likely in this political culture that a nominee will be a centrist than an ideologue, or at least someone who can play the role of centrist in nomination hearings. Obama is not itching for a showdown with conservatives in the Senate, so he's likely to appoint someone who is palatable or at least not nauseating to political antagonists.

Obama's second appointment will not remake the court, but the judicial nomination process has been remade in our lifetime. Steven's resignation is a reminder of how tame judicial nominations used to be. He was confirmed unanimously by the Senate within days of his nomination by President Ford. It's unlikely that the Senate will ever again exercise its advise and consent responsibility in that way. Since Ronald Reagan's 1987 nomination of Judge Robert Bork, the nomination process has changed irreversibly. Ted Kennedy, Joe Biden and liberal interest groups rallied against Bork, whose conservative judicial philosophy was ridiculed as contrary to American tradition. Bork and his handlers were taken aback by the vehemence of the attacks and the distortion of his record and never made a coherent defense of his largely mainstream views and legal reasoning.

Since Bork, every Supreme Court nomination has been a fight over judicial philosophy, so nominees have avoided expressing any opinions or revealing any insights into their personalities. Presidential appointments have not changed appreciably. Conservative presidents appoint conservative justices, and liberal presidents appoint liberal justices (except that some nominees surprise their nominators). What has changed is the Senate's interpretation of its role. Whereas the Senate once gave presidents the benefit of the doubt, approving any well-qualified nominee (Clement Haynesworth and Harold Carswell, nominated by Nixon, had questionable qualifications), now each comment or written word by a nominee is vetted and analyzed. Had modern analysis and political tests been applied to justices such as Felix Frankfurter, William Douglas or Hugo Black, they might not have survived the process.