Senate Minority Whip Jon Kyl said Sunday he would not take the possibility of using a filibuster to try and block confirmation of whoever President Obama nominates to the Supreme Court "off the table," but he said the chances of Republicans using that tactic was "unlikely."
"I am going to abide by what became known as the rule of the gang of 14," Kyl said on ABC's This Week
. "It is unlikely that there would be a filibuster, except if there is an extraordinary circumstance."
Kyl was referring to the group of seven Democratic and seven Republican senators who joined together to avert a major partisan clash in 2005 when the Republican leadership, angered by the Democrats' blocking of votes on former President Bush's judicial nominees, threatened to use the "nuclear option" of changing the rules to curtail the minority's ability to filibuster. Under the agreement fashioned by the "gang," the seven Democrats agreed not to resort to the filibuster except under "extreme circumstances." That exception was never defined and its interpretation was left up to individual senators.
"President Obama himself attempted to filibuster Justice (Samuel) Alito, who now sits on the Supreme Court," Kyl said. "So if the president isn't going to take it off the table, I'm not going to take it off the table. But I think it can easily be avoided by appointing ... someone who is mainstream enough that with intellect and the application of good law can persuade colleagues to support his position or her position."
On Fox News Sunday
, Sen. Lamar Alexander (R-Tenn.) also said he'd abide by the "Gang of 14" precedent. "Except in cases of judicial extraordinary cases, we're going to allow up-or-down vote," he said. "I still believe in that. That's my view. There was no even discussion of a filibuster of Justice (Sonia) Sotomayor. And I was one of the Republicans who voted to confirm her."
Obama will get his chance to choose a second justice for the high court -- his first was Sotomayor -- due to the retirement of John Paul Stevens
, who evolved in his 35 years on the bench into the leader of the court's liberal wing. Some of the most-mentioned possibilities are Solicitor General Elena Kagan
, U.S. Court of Appeals Judge Merrick Garland
and Diana Wood
, also a Court of Appeals judge.
Kyl called that group "all nominally qualified" and said "the question I think to present is, do judges like this or candidates like this approach judging on the basis of each case presenting its unique facts and law and being decided strictly on that basis, rather than with a judge coming to the bench with an ideological position."
Sen. Patrick Leahy (D-Vermont), chairman of the Judiciary Committee, said on NBC's Meet the Press
that he expected Obama to make his nomination "very soon because we'd like to get this wrapped up this summer."
Also speaking on ABC, Sen. Charles Schumer (D-N.Y.), a member of the Senate Judiciary Committee, said he hoped Obama's choice would be someone who would be able to swing votes from the court's conservative majority.
"Justice Roberts has tried to move the court very far to the right, much further than we ever envisioned," Schumer said. "I think Justice Stevens felt that in some of the opinions, dissents that he rendered. And he's been able to get Justice (Anthony) Kennedy to go along with some of those."
"I'd like the new nominee to be ... somebody who would be quite persuasive in terms of influencing other justices, I guess particularly Justice Kennedy, to his or her point of view," Schumer said. "And that would matter to me more than any particular ideology."
On Fox, Sen. Joseph Lieberman (I-Conn.) said "I'm also encouraged ... by the mention by some people of the possibility that President Obama may choose someone who is not a sitting judge at this time ... The remaining eight justices on the Supreme Court have all come to the court from appellate judgeships. Maybe we need somebody who's been a law professor, or a lawyer, a practicing lawyer, or a person in public office like a governor or a senator."
Leahy, speaking on NBC, echoed Lieberman's sentiments: "I've often said I wish we could have some more people outside the judicial monastery. I think Justice Sotomayor came the closest to that having been in prosecutor and in private practice and a trial judge.
Some of the non-judicial possibilities that have been mentioned include Massachusetts Gov. Deval Patrick, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano who was a former governor, and senators Amy Klobuchar of Minnesota and Sheldon Whitehouse of Rhode Island.