The departure of Supreme Court Justice John Paul Stevens adds a crucial task to the Senate schedule, at a minimum, and could peel momentum from looming climate legislation if his successor triggers a searing political fight.
Stevens' announcement arrived more than a week before the anticipated release of a Senate bill restricting greenhouse gases. That timing clouds the chamber's legislative horizon by handing senators a top White House priority in the months leading to contentious midterm campaigning.
That leaves climate change -- still competing for attention with Obama's other big priorities, like an overhaul of Wall Street and a comprehensive jobs bill -- in limbo. The climate bill being drafted by Sens. John Kerry (D-Mass.), Lindsey Graham (R-S.C.) and Joseph Lieberman (I-Conn.) would need to gain swift support to outpace the encompassing confirmation of a life-serving justice, according to some observers.
There's a stretch of time between two congressional recesses, Memorial Day and the Fourth of July, that provides an optimal window for movement of a bill, said Chelsea Maxwell, a former climate adviser to retired Sen. John Warner (R-Va.). That gives lawmakers an opportunity to bring legislation to the Senate floor before the height of the election season and any political maneuvering over a Supreme Court nominee.
"The climate bill will either come first or die," Maxwell said.
The three senators must first release the complex bill. Moderate lawmakers like Sens. Scott Brown (R-Mass.) and Jay Rockefeller (D-W.Va.) will likely decide if the legislation has life, but some aides of fence-sitting senators are expressing increased frustration with the lack of text, a source says. Efforts to find wider support for the bill have delayed its development.
The sharpness of the debate over Stevens' successor depends largely on Obama's choice. Associate Justice Sonia Sotomayor, whom the Senate approved to the high court on Aug. 6, 2009, after a 10-week fight, ascended to the bench relatively unbruised with the help of nine Republicans.
"I don't expect that to play out a second time," James Bopp, a prominent conservative lawyer who advised Mitt Romney's past presidential campaign, said of Sotomayor's 72-day approval period. "If [Obama] nominates another extreme liberal like he has been doing routinely at the Court of Appeals, then I think you can expect a prolonged confirmation fight."
Stall and outrage
The landscape, also, has changed since Sotomayor was confirmed. Democratic leaders in the Senate riled Republicans by using parliamentarian tools in the health care debate. The idling economy and high unemployment rate have darkened Congress' popularity. And this year, Republicans are poised to increase their numbers in fall elections.
If the climate bill fails to find early traction, it could be smothered by campaign-style attacks that depict Obama's court choice as a symbol of the liberalism that expanded the government's role in health care, said Garrison Nelson, a congressional expert with the University of Vermont.
"The hope of the Republican Party is to kind of stall and stall and stall, politicize the nomination as much as possible and tack this onto their anti-health care [message]," he said. "The health care outrage will subside. They need a new outrage."
He added: "So the climate thing is not going to happen at all. It's not going to go."
Kerry, Graham and Lieberman have been working behind the scenes to gain support from industry, environmentalists and their Senate colleagues. Those efforts could accelerate the pace at which the bill gains support when it's introduced, expected next week.
Supporters, meanwhile, say the Senate could continue to work on the massive climate measure well into summer, perhaps even passing it days before Congress breaks for the month of August.
"I think it will have almost no impact," Daniel Weiss, director of climate strategy at the Center for American Progress, said of Stevens' departure. "There's going to be ample time in June, July and early August to bring this bill to the floor."
Marshall Wittmann, a spokesman for Lieberman, said the senator "does not anticipate that the Supreme Court vacancy will have any impact on the consideration of the legislation."
Climate is no longer 'No. 1 priority'
Most of the work to replace Stevens will be done in the Senate Judiciary Committee, where aides will pore over the nominee's legal opinions, public statements and other records. Confirmations can be consuming for the committee's members and staff, but the panel doesn't have jurisdiction over climate and energy issues.
"It's not that complicated," Peter Byrne, director of the Georgetown Environmental Law and Policy Institute, said of Senate confirmations. "You don't really negotiate terms like you do in a statute. You vote yes or no. There's no particular need for it to derail resources that need to be put to a whole host of legislative projects."
Straightforward, maybe, but not simple. Climate legislation naturally slides into second place behind the president's effort to confirm a justice who will brand Obama's signature into U.S. law for perhaps 30 years or more, Byrne said.
"Getting the nominee he wants, I think, probably becomes the president's No. 1 priority. That means, I suppose, there could be trade-offs on other things to get a nominee through."
So far, Republicans are approaching the confirmation peacefully. Sen. Jeff Sessions (R-Ala.), the ranking member of the Judiciary Committee, didn't rule out a filibuster yesterday on "Meet the Press." But he also did not strike a hostile tone toward a shortlist of potential nominees, saying it is "premature" to express opposition to any of them.
"My guess, unless the White House is tone-deaf, is that [Obama] will make the next nominee much like the last one," Ron Kaufman, a Republican strategist, said of Sotomayor. "It was a very orderly process where people on both sides thought it was fair."
Now or 2011
Kerry said in a statement that the confirmation is an "enormous responsibility" that should not interfere with the passage of financial reform legislation and the climate bill.
"We can do all of these things and still confirm a new Justice," Kerry said.
He might be looking at the uncertain terrain of 2011, when the Democratic ranks -- and the possibility of passing controversial carbon caps -- could be thinner.
All five Democratic Senate seats considered "tossups" by the Cook Political Report this year are currently held by lawmakers considered swing votes on global warming legislation. They include Sens. Arlen Specter (D-Pa.), Michael Bennet (D-Colo.), and Blanche Lincoln (D-Ark.).
The Democrats also could lose the seat held by the retiring moderate Sen. Evan Bayh (D-Ind.) The only Democrat vying for his vacant spot, Rep. Brad Ellsworth (D-Ind.), is lagging behind Republican hopefuls by double digits, according to recent polls.