A liberal letdown seems unlikely

As for the Republican nominees who turned out to disappoint conservatives, Yalof said some of the supposed surprises really weren’t surprises to those who were paying attention.

“There were concerns raised on the inside (of Republican administrations) about O’Connor and (Anthony) Kennedy at the time of their nominations. Remember, Kennedy was the third choice and was chosen by a president who was entering his lame duck year.”

Kennedy was Reagan’s third-choice pick for the court after Bork was defeated and nominee Douglas Ginsburg bowed out due to a controversy over his having smoked marijuana.

Nixon’s nominee Lewis Powell “was not really that much of a surprise either — he was a conservative Democrat chosen because he was strong on law and order, and that’s pretty much how he played out,” said Yalof. In 1971 when Nixon picked Powell he “was not even thinking about affirmative action or abortion… he was thinking of law and order and the need to appease the South.”

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When Ford chose Stevens in 1975, Yalof said, he allowed Attorney General Edward Levi “to set a mostly non-ideological tone to the selection process that produced Stevens, who everyone knew was a moderate.”

Yalof said that Souter and Blackmun “were probably the biggest disappointments” to conservative Republicans since President Dwight Eisenhower's nominees Earl Warren and William Brennan in the 1950s.

And “Souter was a stealth candidate chosen because his record was so slim” on inflammatory issues such as abortion. Bush’s obsession with finding a stealth nominee came partly from his having observed the Bork battle and his wish to avoid a similar confirmation fight.

Another factor in the Souter nomination, said Yalof, was that "George H.W. Bush wasn’t really a passionate social conservative like Reagan" or his son George W. Bush. "When White House Chief of Staff John Sununu assured him that Souter would be a true conservative, that was good enough,” Yalof explained.

In the end, sheer numbers often determine the outcome in nomination battles. “If Obama had a 51-49 advantage in the Senate, he would face many of the same difficulties as Bush faced in 1990” when he chose Souter, said Yalof.

Obama’s 59 Democratic votes in the Senate make it exceedingly unlikely that Sotomayor will turn out to be a surprise to liberals — or the Democratic version of David Souter.

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