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As Obama narrows high court choices, GOP prepares for fight

Judge Merrick Garland, seen in May 1, 2008, file photo at the federal courthouse in Washington. AP photo

WASHINGTON — The conservative Judicial Crisis Network says it’s spending upward of a quarter-million dollars on TV and digital ads targeting three appellate judges President Barack Obama is considering to replace the late Justice Antonin Scalia on the Supreme Court.

Two of them — Lincolnwood-reared Merrick Garland and Sri Srinivasan — are among the three final candidates the president has narrowed the selection to, according to a Washington Post report Friday.

Garland — a graduate of Niles West High School in Skokie, Harvard College and Harvard Law School — is chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.

Srinivasan is a judge on the same court, which is sometimes called the “second-highest court in the land,” in part because of the frequency with which its judges ascend to the Supreme Court just a few blocks away.

The Judicial Crisis Network’s move to attack candidates even before Obama announces his selection underscores conservatives’ insistence that no one Obama nominates should be confirmed in an election year.

In the hours after Scalia’s death in mid-February, Senate Republican leaders pledged to block any Obama nominee, saying the president who is elected in November should get to make that pick.

Now, the Republican National Committee is contracting with America Rising Squared, an outside group targeting Democrats that’s run by a longtime aide to Republican Sen. John McCain.

GOP chairman Reince Priebus said it would be the most comprehensive judicial response effort in the party’s history. Priebus said the RNC would “make sure Democrats have to answer to the American people for why they don’t want voters to have a say in this process.”

“This is Exhibit A of Republicans putting political considerations at the RNC ahead of their constitutional duties,” White House spokesman Josh Earnest responded.

Obama is expected to announce his pick as early as this week, touching off a battle as Obama and Democrats try to pressure Republicans into relenting on hearings and a vote. Longtime Obama allies have been drafted to run a Democratic effort that will involve a bevy of liberal groups that hope an Obama nominee to replace the conservative Scalia could pull the high court’s ideological balance to the left.

Amy Brundage, a former White House aide helping to organize the Democratic communications push, said the effort would target specific states where they believe Republicans will feel political heat for opposing hearings once Obama has a living, breathing nominee to promote. She said Democratic groups would organize events with Democratic lawmakers as well as legal scholars, law school deans, state attorneys general and historians.

“The coordinated grassroots effort that has already proven a powerful tool to put pressure on Republicans will only ramp up,” Brundage said.

In an unusual criticism of a colleague from the same state, Sen. Tammy Baldwin, D-Wis., cited comments that Republican Wisconsin Sen. Ron Johnson made last week about the nomination process. In a Wisconsin radio interview, Johnson said “there’s a little more accommodation to it” if a conservative president were nominating another conservative to replace Scalia.

“Do Senate Republicans really believe that they need a Republican president simply to do their jobs?” Baldwin asked on the Senate floor Monday, not mentioning Johnson by name.

RNC officials said that in addition to scouring the nominee’s history for anything that can be used against him or her, the party also will work to portray Democrats as hypocritical, dredging up comments that Vice President Joe Biden and other Democrats made in previous years suggesting presidents shouldn’t ram through nominees to the high court in the midst of an election.

The GOP has been looking into candidates on Obama’s short-list and will oppose him or her with radio and digital ads, petitions and research documents. The committee is also lining up “surrogates” who will make the case in the news media.

Key to the Republican strategy will be targeting Democrats facing tough races over their insistence that Obama, in his final months in office, gets to choose a justice who could reshape the court’s ideological balance for decades.

In his search for a successor to Scalia, Obama is zeroing in on a small group of appellate court judges with largely traditional credentials and a history of bipartisan backing.

As he has in his past two nominations, Obama appears drawn to candidates with traditional resumes — Supreme Court clerkships, prestigious posts in government and stints at major law firms.

The White House has stressed that the nominee will have “impeccable” credentials, suggesting that person will have a record so sterling Obama administration officials feel the choice would shame GOP senators into backing down.

Obama’s consideration of Garland appears to fit that approach. Garland, a white 63-year-old with an Ivy League, East Coast background, has a reputation as a judicial moderate with broad respect in Washington and a resume that makes him look like a lot of the high court’s current members.

Five other current justices, as well as Scalia, also came from Harvard.

Garland has been in this position before. The last time a seat opened up on the Supreme Court, in 2010, he was widely considered a top candidate for the job and interviewed with Obama. The slot ultimately went to Justice Elena Kagan.

As a young lawyer, Garland clerked for two appointees of Republican President Dwight D. Eisenhower: the liberal U.S. Supreme Court Justice William Brennan Jr. and Judge Henry J. Friendly, for whom Chief Justice John Roberts also clerked.

Before becoming a judge himself, Garland was a prosecutor and supervised Justice Department investigations into the 1995 Oklahoma City bombing and Unabomber Ted Kaczynski.

His background made him popular even with Republicans when he was nominated to the D.C. Circuit by President Bill Clinton in 1995, but the full Senate didn’t initially act on his nomination. The issue wasn’t Garland, Iowa Republican Sen. Charles Grassley said at the time, but whether the court needed another judge at all. Grassley is now the chairman of the Judiciary Committee, which would oversee any hearings on a nominee.

Garland ultimately was confirmed to the D.C. Circuit on a vote of 76-23 in 1997. Thirty-two Republicans voted in favor of his nomination, including seven who are still members of the Senate.

Despite his background, there are two possible stumbling blocks to his nomination: his age and the fact he is a white male. Most of the court’s current members were nominated and confirmed while in their 50s. Justice Ruth Bader Ginsburg was the oldest at confirmation, at 60.

Presidents generally like to choose nominees younger than Garland is to ensure they will serve for a long time. Still, Justice Lewis Powell was 64 when nominated to the court in 1971, so Garland’s nomination wouldn’t be unprecedented.

Another possible factor: Garland’s religion — he is Jewish — also wouldn’t add to the diversity of the court. Three of its current members are Jewish, and five are Catholic.