The former chair of the Senate Judiciary Committee, Orrin Hatch, has admitted to a conservative talk show host that Republicans would find themselves with a real dilemma if  President Obama were to propose Solicitor General Elena Kagan or Sonia Sotomayor, of the Second Judicial Court of Appeals for a seat on the Supreme Court.   ""You have to admit Elena Kagan is a brilliant woman," said the Utah Republican to Scott Hennen. "She is a brilliant lawyer. If he picks her, it is a real dilemma for people. And she will undoubtedly say that she will abide by the rule of law."  In other words, Kagan and Sotomayor are qualified, but they are liberal.

But what if Obama were to consider nominating a staunch conservative?  How thrilled would Hatch and his henchmen be?   

We could find out.

 What if the Obama team outFOXed their Republican naysayers by  "leaking" their "consideration" of the name of a conservative constitutional  lawyer? [gasp!] A REAL conservative, who has been highly critical of the Bush administration's arrogation of executive power, who openly called for Bush's and Cheney's impeachment, ridiculed the nomination of Harriet Miers to the Supreme Court and sharply criticized Attorney General Alberto Gonzalez?  And yes, even criticized President Obama recently for being too soft on the architects of Bush administration torture policies?

Someone like Bruce Fein?
 

Bruce Fein, a 1972 graduate of Harvard Law School, served as associate deputy attorney general  and as general counsel to the FCC during the Reagan adminsitration.  He wrote an extensive 30-page critique of  Times vs. Sullivan, the USSC ruling that freed the media from much of its liability under American libel laws (misattributed to John Roberts during his nomination hearings for the post of Chief Justice). In 1987, Fein served as minority party research director of the committee that investigated the Iran Contra scandal.  He is the author of numerous articles on constitutional issues, and he is highly respected as an authority on civil liberties. 

Republicans would either have to say that a) Fein is a terrific choice because he is conservative.  They would thereby have to accept Fein's criticisms of the Bush/Cheney administration, which would then render attacks on other constitutional lawyers who opposed Bush's policies moot.  b) Alternatively, the Republicans could keep up their naysaying, opposing a staunchly conservative constitutionalist, and, in the course of attacking Fein, bring his many criticisms of the Bush White House to light in the process of denigrating him.

While I doubt that Obama would actually end up nominating Fein as a USSC justice (Fein was a founder of the American Freedom Agenda with Bob Barr and Richard Viguerie, and addressed Ron Paul's Sept. 2, 2008 "Rally for the Republic"), floating the possibility of nominating him would give wider prominence to Fein's outspoken criticisms of Bush's interventionist foreign policy and his exoriation of the Bush/Cheney anti-terror policies, including wiretapping and detention of terror suspects. Fein recently criticized President Obama for not prosecuting the Bush administration officials who wrote the memos justifying torture during interrogations.  If Hatch has a "dilemma" opposing Kagan and Sotomayor, what box would a whisper that Fein is being considered for nomination to the USSC put him in? How would Eric Cantor, Michael Steele and Sarah Palin react?   What would Bill O'Reilly, Sean Hannity and Rush Limbaugh have to say if they couldn't attack a potential nominee for being "too liberal"?

This could dramatically change the dynamics of the discussions of all subsequent nominees for retiring justice David Souter's seat and and those of any other SC justices that may become available during Obama's presidency.