Renewed speculation that Justice Stevens will retire at the end of this term raises an interesting issue: What do the possible nominees think about the constitutionality of Obamacare?
Given that at least one of the lawsuits challenging Obamacare filed by state attorneys general is likely to make it to the Supreme Court after the new justice is sworn, the nominee likely will decline to answer any questions about the constitutionality of Obamacare during confirmation hearings.
But that doesn’t mean that the question can’t be posed by the press to potential nominees now, although candidates rumored to be on the short list would be wise to avoid comment. The issue is sufficiently controversial that any declared position would probably remove a candidate from consideration. The administration doesn’t need to make the confirmation process any more difficult than it already is. In fact, Michigan governor Jennifer Granholm — reported to have been under consideration for the seat eventually filled by Justice Sotomayor — probably took herself out of contention last week when she publicly asserted that the constitutional challenges were without merit.
Finding a nominee who is both qualified yet so intellectually incurious as not to have opined on the constitutionality of the most consequential piece of legislation in generations may prove a challenge for the Obama administration. Since the nominee won’t testify as to the constitutionality of Obamacare, Republicans should ask the president whether upholding the legislation will be a litmus test for nomination to the Supreme Court.