High court short-listers' job No. 1: Don't mess up

[May 05, 2010]  WASHINGTON (AP) -- Lie low; go about your business. Don't campaign; keep your name out there. Don't seem too eager; find ways to shine.

Caption: This June 2008 file photo provided by the University of Chicago shows Judge Diane Pamela Wood. Liberals fear that after helping elect President Barack Obama he'll abandon them when he nominates a Supreme Court justice, choosing a consensus-building moderate rather than a liberal in the mold of retiring Justice John Paul Stevens.  (AP file photo/University of Chicago, Lloyd DeGrane)

There's no etiquette handbook for the elite few on Barack Obama's short list for the Supreme Court. Nor is there any shortage of advice.

As the president closes in on his choice to fill a vacancy on the high court, the short-listers know all their words, moves and actions are under intense scrutiny.

For all of them, one job is paramount: Avoid messing up.

"You don't want something showing up on YouTube that's going to kill your chances," says historian Julian Zelizer. "The etiquette seems to be: Don't say anything about why you would be a good pick, and act as if you're not going to be the pick."

Those being considered to replace Justice John Paul Stevens include judges, a governor, top administration officials and others in high places who can't avoid constant questions about whether they'd like the job and whether they've been contacted about it. They're adopting all sorts of coping strategies.

Michigan Gov. Jennifer Granholm has talked herself up on cable TV at times and thrown cold water on her prospects on other occasions. Federal appeals judge Diane Wood's credentials are being lauded by former law clerks. Homeland Security chief Janet Napolitano employs the polite non-answer.

Napolitano appeared on several TV news shows Sunday to discuss the attempted car bombing in Times Square, the oil spill in the Gulf of Mexico and unrest over immigration in Arizona. Inevitably, the subject of the Supreme Court vacancy came up as well.

"I'm flattered" by the questions about the court, Napolitano said on "Fox News Sunday." "As you can tell from this interview, I think I'm focused on a few other issues right now."

Another strategy is to let surrogates do the cheerleading.

"It's family and friends to the fore," says Nan Aron, president of the liberal Alliance for Justice. She added that in the case of judges, former law clerks count as family, too.

"You know it's a campaign," says Aron, "but, boy, it's got to be below the radar."

Veterans of Supreme Court nominations past say friendly phone calls are made on behalf of potential nominees, unlikely allies surface to talk up the candidates' merits, short-listers go through their contact lists and call in favors, strategic supporters in the White House and Congress are enlisted.

But former Solicitor General Ted Olson, whose name got mentioned for court vacancies during the George W. Bush administration, warned that even a stealth campaign can be counterproductive.

"There's nothing in Washington that stays quiet for very long," Olson said. He added that he didn't think he was ever truly a short-lister, even though he got mentioned in the swirl of speculation.

White House aides, for their part, have said interest groups should not campaign for their candidates. They say Obama won't be swayed and such overt campaigning could result in candidates being defined by the groups that were advocating for them.

Wood, Solicitor General Elena Kagan and federal appeals court judge Ann Williams attended a judicial conference Monday in Chicago, where Stevens spoke, all the talk was about his successor and all eyes were on the short-listers, who shed no light.

Kagan, billed as the legal conference's main speaker, kept her remarks short and uncontroversial, praising Stevens for his "sterling integrity and unimpeachable honesty." Wood, for her part, got a first-name mention as Stevens recounted a story about the old days when justices were referred to as "Mr. Justice" -- back when "Diane" was still a Supreme Court clerk.

Last month, Kagan kept a low profile, and left it to White House surrogates to push back when a blogger made assertions about her personal life on a network Web site.

Granholm, meanwhile, has been more forthcoming in discussing her own prospects.

On a public radio call-in show in March, Granholm was asked about the court vacancy, and said: "Would I be interested? Yes, I think it would be a great opportunity. But I just don't think it's going to happen. ... I'm not a judge and it would be a very unusual decision on the part of the president."

Two weeks ago, she struck a different tone when asked about the idea of Obama selecting a nominee who's not a judge, saying, "It's a very wise move to consider experience that is not just from the judicial monastery."

"I mean, I'm from the most challenged state in the country," Granholm said. "And, you know, for somebody to experience and see what everyday people are feeling and experiencing out there, I think is an important thing to consider." The governor added that she wasn't the only one in that category, pointing to Napolitano.

Granholm later said her TV comments were "absolutely not" an attempt to push herself for the job.

"I'm really not commenting about it much, other than to say it's an honor to be on the list."

For some of those mentioned, one challenge is determining whether they're true contenders or simply being mentioned for political reasons.

Harold Koh, a legal adviser to the State Department, has been quietly going about his business since his name emerged. But Koh has told others he doesn't believe he's really on the short list and has likened his situation to being a minor contender for an Academy Award.

"It's a bit like being an Oscar nominee," he told one person, who spoke on condition of anonymity because of sensitivity about private White House deliberations. "You don't know what to make of it and you're not quite sure what to think."

[Associated Press; By NANCY BENAC]

Associated Press writers Ben Feller and Matthew Lee in Washington, Mike Robinson in Chicago and Kathy Barks Hoffman in Lansing, Mich., contributed to this report.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.