Former Attorney General Alberto Gonzales was on NPR today, contributing to the commentary on Obama’s comment that he wanted to appoint someone to the Supreme Court who has “empathy.”  Fredo’s contribution:

GONZALES: I do worry a little bit, well, I worry, I worry about about justices on the court making decisions based on what they think makes them feel good. I don’t think it’s fair to expect society to anticipate the outcome of a case based upon what makes a justice feel good. In essence what you’re saying, I think, is that I’m going to, I don’t care what the law says, I’m going to come out, I’m going to pursue an outcome that I think is fair and just. I’m going to rewrite the law. And I think that’s dangerous.

Yesterday, Washington Post columnist E.J. Dionne wrote a post on the paper’s PostPartisan blog about how “logic pointed to choosing [Solicitor General] Elena Kagan” for the Supreme Court and that Kagan was “the obvious choice.”  His argument starts off based on the premise that Obama’s next pick is likely to be a non-latina woman, meaning that Kagan is best-fit for the job because she has already been confirmed with 61 votes for the position of Solicitor General.  Dionne concluded his post:

Courtesy: Washington Post

We will soon learn how good my logic is.

Well, why wait until the nomination?  While we don’t dispute the fact that Kagan would be a great nominee, she won’t help President Obama in “avoiding a major battle,” as Dionne claims.  Almost two weeks ago, we wrote about why she isn’t guaranteed a smooth confirmation:

The former Harvard Law School dean received only six Republican votes for her March 19 confirmation as Solicitor General, from Sens. Judd Gregg (NH), Susan Collins (Maine), Olympia Snowe (Maine),Tom Coburn (Okla.), Jon Kyl (Ariz.) and Orrin Hatch (Utah). Thirty one Republicans voted against her - including Sen. Arlen Specter, who is now a Democrat. Conservative groups have alreadycirculated a memo against Kagan and other potential Obama nominees. If she goes before the Senate as a nominee for the Supreme Court, she could lose at least one GOP vote - Kyl’s.

The Arizona Republican said on the Senate floor he supported her nomination because of the written recommendations from promiment conservatives including former Acting Attorney General Peter Keisler, attorney Miguel Estrada and former Solicitors General Ted Olson, Paul Clement and Greg Garre. Kyl emphasized that his vote for Kagan as Solicitor General was for that position only, however, and that he wouldn’t automatically support her for the Supreme Court.

“My decision whether to support or oppose her would be strongly influenced by the decisions made by her as Solicitor General,” Kyl said on the floor. He added, “If she approaches her job as Solicitor General ideologically or argues inappropriate positions, I will not hesitate to oppose her nomination.”

Coburn, a staunch conservative, did not speak about Kagan’s nomination on the floor. He gave few hints behind his decision to support her nomination when he told the Ada Evening News: “I voted for her because she was qualified.”

Kagan could also have difficulty picking up now-Democratic Sen. Arlen Specter (Pa.), who opposed her nomination for Solicitor General. When he was a Republican, he said he was unable to learn enough about Kagan during the discussions he had with her.

“I’ve gone to some length to try to find out more about Dean Kagan,” Specter said on the floor. “But in the absence of being able to do so and really have a judgment on her qualifications, I’m constrained to vote no.”

Specter also complained that Kagan wasn’t familiar with a lawsuit by victims of the 9/11 attacks against Saudi Arabian officials and business people who were alleged to have helped finance terrorism. Said Specter on the Senate floor: “There has been a lot of information in the public domain that Saudi charities were involved. Fifteen of the nineteen hijackers were from Saudi Arabia. People were murdered. There are claims pending in court. The question is whether the Supreme Court is going to take the case. Well, I wish to know what the nominee for the position of Solicitor General thinks about it.”

Conservatives were upset by Kagan’s opposition to the Solomon Amendment, which required universities receiving federal funds to allow military recruiters on campus. Kagan opposed the amendment because of the military’s “Don’t Ask, Don’t Tell” policy on gay service members. Kagan’s position on the amendment was the chief reason Sen. Jeff Sessions (R-Ala.) voted against her. “I believe her record shows a lack of judgment and experience,” Sen. Jeff Sessions (R-Ala.), said on the Senate floor during debate on her nomination to be Solicitor General.

Here’s the vote tally on Kagan’s March 19 confirmation:

YEAs —61
Akaka (D-HI) Baucus (D-MT) Bayh (D-IN) Begich (D-AK) Bennet (D-CO) Bingaman (D-NM) Brown (D-OH) Burris (D-IL) Byrd (D-WV) Cantwell (D-WA) Cardin (D-MD) Carper (D-DE) Casey (D-PA) Coburn (R-OK) Collins (R-ME) Conrad (D-ND) Dodd (D-CT) Dorgan (D-ND) Durbin (D-IL) Feingold (D-WI) Feinstein (D-CA)	Gillibrand (D-NY) Gregg (R-NH) Hagan (D-NC) Harkin (D-IA) Hatch (R-UT) Inouye (D-HI) Johnson (D-SD) Kaufman (D-DE) Kerry (D-MA) Kohl (D-WI) Kyl (R-AZ) Landrieu (D-LA) Lautenberg (D-NJ) Leahy (D-VT) Levin (D-MI) Lieberman (ID-CT) Lincoln (D-AR) Lugar (R-IN) McCaskill (D-MO) Menendez (D-NJ) Merkley (D-OR)	Mikulski (D-MD) Nelson (D-FL) Nelson (D-NE) Pryor (D-AR) Reed (D-RI) Reid (D-NV) Rockefeller (D-WV) Sanders (I-VT) Schumer (D-NY) Shaheen (D-NH) Snowe (R-ME) Stabenow (D-MI) Tester (D-MT) Udall (D-CO) Udall (D-NM) Warner (D-VA) Webb (D-VA) Whitehouse (D-RI) Wyden (D-OR)

NAYs —31
Alexander (R-TN) Barrasso (R-WY) Bennett (R-UT) Bond (R-MO) Brownback (R-KS) Bunning (R-KY) Burr (R-NC) Chambliss (R-GA) Corker (R-TN) Cornyn (R-TX) Crapo (R-ID)	DeMint (R-SC) Enzi (R-WY) Grassley (R-IA) Hutchison (R-TX) Inhofe (R-OK) Isakson (R-GA) Johanns (R-NE) Martinez (R-FL) McCain (R-AZ) McConnell (R-KY) Murkowski (R-AK)	Risch (R-ID) Roberts (R-KS) Sessions (R-AL) Shelby (R-AL) Specter (R-PA) Thune (R-SD) Vitter (R-LA) Voinovich (R-OH) Wicker (R-MS)

Not Voting - 7
Boxer (D-CA) Cochran (R-MS) Ensign (R-NV)	Graham (R-SC) Kennedy (D-MA) Klobuchar (D-MN)	Murray (D-WA)

Former Deputy Attorney General James Comey, who stood up against the Bush administration on domestic eavesdropping, is being floated around the White House as a candidate to replace Supreme Court Justice David Souter, Politico reported this afternoon.

Comey is “the sort of unconventional choice – someone who’s not a federal appeals-court judge – that key senators, and some administration officials, have been urging President Obama to consider,” Politico said.

Obama is still in the process of winnowing down the pool of more than a dozen potential candidates for the lifetime appointment. We previously reported that another one of Main Justice’s own, Solicitor General Elena Kagan, is also in the mix to replace Souter.

Sen. Jeff Sessions (R-Ala.), the staunch conservative who is the new ranking member on the Senate Judiciary Committee, said he a Supreme Court nominee’s sexual orientation shouldn’t matter. ”I don’t think a person who acknolwedges that they have gay tendenceis is disqualified per se for the job,” Sessions said in an interview on MSNBC. He also said he was not inclined to filibuster President Obama’s nominee.

Read coverage of Sen. Jeff Sessions (R-Ala.) rise to Judiciary Committee ranking member at the Washington Post here and the New York Times here. Conservative groups are pleased, reports The Hill.

Solicitor General Elena Kagan’s name is in the mix for the Supreme Court nomination to replace retiring Justice David Souter. She enjoys great respect from conservatives in the legal establishment. But politically, her nomination wouldn’t be without controversy.

The former Harvard Law School dean received only six Republican votes for her March 19 confirmation as Solicitor General, from Sens. Judd Gregg (NH), Susan Collins (Maine), Olympia Snowe (Maine), Tom Coburn (Okla.), Jon Kyl (Ariz.) and Orrin Hatch (Utah). Thirty one Republicans voted against her - including Sen. Arlen Specter, who is now a Democrat. Conservative groups have already circulated a memo against Kagan and other potential Obama nominees. If she goes before the Senate as a nominee for the Supreme Court, she could lose at least one GOP vote - Kyl’s.

The Arizona Republican said on the Senate floor he supported her nomination because of the written recommendations from promiment conservatives including former Acting Attorney General Peter Keisler, attorney Miguel Estrada and former Solicitors General Ted Olson, Paul Clement and Greg Garre. Kyl emphasized that his vote for Kagan as Solicitor General was for that position only, however, and that he wouldn’t automatically support her for the Supreme Court.

“My decision whether to support or oppose her would be strongly influenced by the decisions made by her as Solicitor General,” Kyl said on the floor. He added, “If she approaches her job as Solicitor General ideologically or argues inappropriate positions, I will not hesitate to oppose her nomination.”

Coburn, a staunch conservative, did not speak about Kagan’s nomination on the floor. He gave few hints behind his decision to support her nomination when he told the Ada Evening News: “I voted for her because she was qualified.”

Kagan could also have difficulty picking up now-Democratic Sen. Arlen Specter (Pa.), who opposed her nomination for Solicitor General. When he was a Republican, he said he was unable to learn enough about Kagan during the discussions he had with her.

“I’ve gone to some length to try to find out more about Dean Kagan,” Specter said on the floor. “But in the absence of being able to do so and really have a judgment on her qualifications, I’m constrained to vote no.”

Specter also complained that Kagan wasn’t familiar with a lawsuit by victims of the 9/11 attacks against Saudi Arabian officials and business people who were alleged to have helped finance terrorism. Said Specter on the Senate floor: “There has been a lot of information in the public domain that Saudi charities were involved. Fifteen of the nineteen hijackers were from Saudi Arabia. People were murdered. There are claims pending in court. The question is whether the Supreme Court is going to take the case. Well, I wish to know what the nominee for the position of Solicitor General thinks about it.”

Conservatives were upset by Kagan’s opposition to the Solomon Amendment, which required universities receiving federal funds to allow military recruiters on campus. Kagan opposed the amendment because of the military’s “Don’t Ask, Don’t Tell” policy on gay service members. Kagan’s position on the amendment was the chief reason Sen. Jeff Sessions (R-Ala.) voted against her. “I believe her record shows a lack of judgment and experience,” Sen. Jeff Sessions (R-Ala.), said on the Senate floor during debate on her nomination to be Solicitor General.

Here’s the vote tally on Kagan’s March 19 confirmation:

It’s way too early to say who will be nominated to succeed retiring Justice David Souter.  But Solicitor General Elena Kagan’s name immediately came into the mix. The former dean of the Harvard Law School has only been Solicitor General since March 19. But there will be pressure to select a woman - not unreasonable, given that women are half the population but an indefensible mere 1/9th of the Court.

 But Kagan’s not the only woman being mentioned. So is Secretary of State Hillary Clinton and federal Judge Sonia Sotomayor of New York . And Kagan’s recent confirmation vote in the Senate augured some controversy. While many top DOJ officials have sailed through in recent weeks, the vote for Kagan was 61-31 - a not insignificant bloc against her.