Ok, so the nomination of Elena Kagan to replace retired Justice John Paul Stevens hasn’t exactly made for sensational headlines. That’s because the replacement of a Supreme Court justice by another with similar ideological views and judicial philosophies doesn’t really make for a sexy story.

But what if a conservative justice (or even the more moderate so-called swing voter, Justice Anthony Kennedy) were to be replaced by President Barack Obama? Particularly if Republicans earn more seats in the Senate at the midterm elections?

Now, that’d be a barn burner!

That is the scenario posed by CBS News’ Jeff Greenfield.

Greenfield notes that most of the Court’s most recent controversial rulings – such as those on gun rights, late-term abortions, corporate campaign spending – were decided by ideologically-split 5-4 votes. So if a Democratic president named a replacement for a conservative justice, he could create a dramatic shift in power on the Court.

“And that means that the confirmation struggle is likely to go ‘nuclear,’” Greenfield writes.

Not only will such a nomination produce heated arguments in the Senate over ideological differences and the use of the filibuster to block a nominee, Greenfield writes, Senate Republicans might even suggest calling the whole thing off.

“We may even hear conservative academics argue, as one prominent liberal law school professor did after the disputed 2000 election, that the Congress should simply leave the position vacant until voters decide in 2012 who should be nominating justices,” Greenfield writes. “Indeed, the closer we are to the 2012 election when and if a conservative justice retires, the more intense the political fight will be.”

Now, considering most of the justices in Court’s so-called conservative bloc are pretty young, seemingly healthy, and admittedly very happy with their jobs, this scenario is probably not terribly likely.

For the record, Chief Justice John G. Roberts, Jr. is 55, Justices Antonin Scalia and Kennedy are 74, Justice Clarence Thomas is 62 and Justice Samuel Alito, Jr. is 60.

Just days after a U.S, Supreme Court’s ruling demonstrated the danger of having an understaffed National Labor Relations Board, Tuesday the Senate confirmed two of President Barack Obama’s nominees to the Board: Democrat Mark Pearce and Republican Brian Hayes. That brings the Board to a full five operating members for the first time since 2007.

But the Senate did not confirm Obama’s third nominee to the board, former labor union lawyer Craig Becker, whose nomination sparked heated opposition from some Republicans and business groups who expressed fear that Becker would use Board rulings to usher in a “card check” union voting rule on an administrative level. Such a rule would allow employees to organize by a show of card instead of a secret balloting process. Legislation that would have authorized the change stalled in Congress last year.

Becker was installed on the Board in March as a recess appointment.

Yesterday the Senate confirmed Obama’s nominees for more than 60 posts ranging from judgeships to U.S. attorneys to agency positions.

This week the U.S. Supreme Court hears the last oral arguments of October Term 2009. The justices will hear cases concerning employment arbitration contracts, ERISA attorney fees, genetically engineered crops and the privacy of names on ballot petitions.

Meanwhile as the White House and members of Congress focus on financial industry reform, a new law in Arizona is refueling the debate over immigration – an issue that may soon get pushed top of the Obama administration‘s agenda.

Meanwhile,

Risky business? The risk of abuses in arbitration of consumer debt collection that led to the downfall of the National Arbitration Forum and an agreement by four major banks to cease enforcement of mandatory arbitration provisions in debt collection has not gone away, according to a report issued by the National Consumer Law Center. (Lawyers USA)

Counsel contempt: Former Bush special counsel Scott Block has been charged with contempt for withholding information from Congress. (Reuters)

Sensitive Supreme: The White House is looking for a Supreme Court nominee who is sensitive to “ordinary Americans.” (Washington Post)

SCOTUS point man: You want to learn more about the man at the White House in charge of the search for the next justice? (AP)

After meeting with Senate leaders at the White House about the next Supreme Court nominee, President Barack Obama told reporters this morning that he will select someone to replace retiring Justice John Paul Stevens some time next month.

Speaking to the press as he sat with Vice President Joe Biden, Senate Majority Leader Harry Reid, Minority Leader Mitch McConnell, Judiciary Committee Chairman Patrick Leahy and ranking Republican Jeff Sessions, Obama called Stevens “one of the finest Supreme Court justices that we’ve seen.”

“Those are going to be some tough shoes to fill,” Obama said. “This is somebody who operated with extraordinary integrity and fidelity to the law. But I’m confident that we can come up with a nominee who will gain the confidence of the Senate and the confidence of the country, and the confidence of individuals who look to the Court to provide even handed justice to all Americans.”

Obama said he hoped for the confirmation process to go as smoothly as it did last year.

“Last time when I nominated Sonia Sotomayor, I have to say that all the individuals who are sitting here … worked very cooperatively on what I considered to be a very smooth, civil, thoughtful nomination process and confirmation process. [M]y hope is that we can do the same thing this time.”

He said last year the nomination of Sonia Sotomayor came at the end of May, and he hoped to make or beat that timeline this year.

When asked what bearing the issue of abortion would have on his selection, Obama said he firmly believes in a woman’s right to bodily autonomy, but said that he had no litmus test.

“This has been a hugely contentions issue in our country for a very long time,” Obama said. “I have said the same thing that every president has said since this issue case up, which is I don’t have a litmus test.”

But he said he would select “somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights. And that is going to be something very important to me. … Individuals are protected in their privacy, their bodily integrity, and women are not exempt from that.”

UPDATE: After the meeting, Sessions and McConnell issued a joint statement:

“When the President selects a nominee, Senate Republicans will review that nominee’s record diligently and respectfully with the goal of ensuring that the American people can be confident that the nominee will be able to fulfill the judicial oath, which is to ‘faithfully and impartially’ administer justice ‘without respect to persons,’” the statement read.

“Judges must apply the Constitution and laws even-handedly. They should not enter the courtroom with preconceived outcomes in mind, or work to arrive at the preferred result of any President or political party. A Supreme Court justice must not be a rubberstamp or policy arm for any Administration.

“As we did with Justice Sotomayor, we will treat the President’s nominee fairly. But a lifetime position on the nation’s highest court requires a thorough process, not a rush to judgment.”

The US. Supreme Court resumes oral arguments today with two high-profile cases.

First the justice will take up whether a public university law school can deny funding and recognition to a religious student organization that bans non-religious and gay students from its membership in Christian Legal Society v. Martinez.

Then the justices take up City of Ontario v. Quon, a case considering whether employees have a reasonable expectation of privacy in the text messages they send using electronic devices supplied by their employer. The case could have wide-ranging implications affecting how employees use the cell phones, laptop computers and other equipment given to them to use on the job.

More on these arguments, as well as any newsworthy orders today from the Court, later on this blog and on Lawyers USA online.

Meanwhile, in other news:

Scalia speaks: During the Court’s latest recess, several justices took to the lecture circuit. Justice Scalia spoke Friday at the University of Virginia, where he used to be a law professor, and discussed – wait for it – originalism.  (Charlottesville Daily Progress)

Breyer’s prediction: Meanwhile, while testifying last week along with Justice Clarence Thomas before Congress, Justice Stephen Breyer predicted that the new health care reform law would probably end up before the Supreme Court for review. (AP)

Not ready for a close-up: Would you like to see Supreme Court proceedings televised? Don’t hold your breath, Breyer said. (Washington Post)

The absent justice? If Solicitor General Elena Kagan becomes a Supreme Court justice this summer, she may have to recuse herself from a host of cases being considered by the Court. Might that harm her chances of getting President Obama’s nod? (SCOTUSblog)

New issue in NLRB case: The Supreme Court asked the attorneys for the parties in the case testing the authority of the former two-member National Labor Relations Board to file supplemental briefs on the effect of the two recent appointments. (SCOTUSblog)

Clinton‘s SCOTUS advice: Former President Bill Clinton thinks President Obama should pick a young non-judge to replace retiring Justice John Paul Stevens. And neither he nor his wife fit the bill, he added. (AP)

White House officials were incensed yesterday by a CBS News online column asserting that Solicitor General Elena Kagan, who is reportedly at the top of President Obama’s Supreme Court nominee list, is a lesbian.

According to the Washington Post‘s Howard Kurtz, White House officials immediately assailed the column, written by former Bush aide Ben Domenech, which a asserted that the choice to put the first “openly gay justice” on the bench would please Obama’s base. White House officials said Kagan is not gay.

At first CBS officials refused to pull the online post. Instead, Domenech added an update saying Kagan was apparently “still closeted.”

But by the end of the day yesterday, executives at CBS pulled the column, saying it “just got through our filters” and that such an allegation should not have been published without “more evidence of its accuracy.”

Domenech later apologized, saying the information was based on rumor. “I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post,” he said.

Anita Dunn, a former White House communications director who is helping White House officials with the Supreme Court nomination process, blasted the news organization for giving such a long leash to a writer who has faced plagiarism charges in the past.

“The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010,” Dunn told the Post, adding that such stories “appl(y) old stereotypes to single women with successful careers.”

Meanwhile, in other headlines:

The genteel justice: Retiring Justice John Paul Stevens’ oral argument questions are as tough as any other justice, but they come in a much more polite form. Supreme Court practitioners reflect on being asked: “May I ask you this question?” (Lawyers USA)

No fast audio: For the seventh time this term, the Supreme Court has declined a request to release same-day audio of oral arguments to broadcast stations. This is the first term in four years where no same-day audio was released, despite several high-profile cases on the docket dealing with campaign finance rules, gun rights, and Monday’s First Amendment school case. (ABA Journal)

Med-mal debate rages: A letter to AAJ’s membership about the health care law was quickly assailed by tort reform groups, demonstrating that the debate over medical malpractice reform will live long after lawmakers’ wrangling over the legislation’s language. (Lawyers USA)

Same-sex visitation rights: The Obama Administration will issue new rules aimed at granting hospital visiting rights to same-sex partners. (New York Times)

Despite President Barack Obama’s public rapping of a Supreme Court ruling during the State of the Union address, and subsequent comments from Chief Justice John G. Roberts, Jr. questioning why justices should even attend the politicized “pep rally,” yesterday Roberts said he and Obama get along well.

During an address at the Indiana University School of Law-Indianapolis, Roberts said when he and Obama see each other at official events they are friendly – although both realize they are limited in terms of conversation subjects. Presidents, “whether it’s President Bush or President Obama, recognize that they can’t talk to me about much, and I can’t talk to them about much,” Roberts said, according to the Wall Street Journal’s Law Blog. The usually safe topic of conversation? Fatherhood, Roberts said.

Speaking about his relationship with one of his colleagues, Roberts, who grew up in Indiana said: “I’ve always felt . . . a special affinity for Justice [John Paul] Stevens, who comes from Chicago…[P]eople from the Midwest have a certain openness about them.”

And while he disputed the notion that lawsuits are ruining the world, Roberts did say that “the federal courts are becoming more and more incapable of serving as forums for resolving disputes.”

Justice Sandra Day O’Connor predicts that fewer Supreme Court justices will attend State of the Union addresses because of the “awkward” position in which it places them.

“It is not much fun to go because you put on a black robe and march in and you’re seated in the front row, (you) put your hands in your lap and have no expression on your face throughout the proceedings. You can clap when the president comes in and when he leaves and that’s it. It’s very awkward,” she told reporters after giving a lecture at New York Law School yesterday.

O’Connor, who retired from the bench in 2006, joins a number of current justices who have chimed in about the role of the Supreme Court at the president’s annual address, which is delivered in a politically charged atmosphere.

After President Barack Obama criticized a campaign finance ruling by the court in his address to Congress in January, Justice Samuel Alito shook his head in disagreement, spurring a very public discussion of whether members of the Court should attend at all.

O’Connor said the justices have always struggled with that question.

“It’s always been uncomfortable,” she said. “There were always people who thought, ‘God, do we have to go? Let’s don’t.’ So it’s been kind of a struggle to get them there anyway,” O’Connor said.

Justices John Paul Stevens, Clarence Thomas, Antonin Scalia and retired Justice David Souter have often skipped the speeches, citing the politicized atmosphere.

O’Connor also said she’d like to see more diversity on the Court with more women, non-judges and Protestants nominated to the bench.

“I think that religion should not be the basis for an appointment, but if that were the case, one would expect somewhere in the nine to see a Protestant or two,” she said. “You’ll probably see someone eventually.”

Currently the only Protestant on the Court is Justice Stevens, who is considering retiring as early as the end of this term.

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)

UPDATE: The hearing has been postponed. This is the note on the committee’s web page: “The hearing on ‘Nominations’ scheduled before the Senate Committee on the Judiciary for Wednesday, March 24, 2010 at 2:30 pm has been postponed due to Republican objection and will be rescheduled at the earliest possible time.”

A Senate confirmation hearing set for this afternoon could provide a preview of the contentious fight President Obama may face should he get the chance to nominate another Supreme Court justice soon.

Goodwin Liu, who was nominated by Obama for the 9^th Circuit Court of Appeals, faces the Senate Judiciary Committee today. And the committee’s top Republican, Sen. Jeff Sessions, has already made it clear that a battle awaits Liu.

Speaking about the nomination of 39-year-old Liu, a University of California at Berkeley law professor known his intellectual heft as well as his left-leaning views, Sessions told the Washington Post: “Instead of nominating an individual who has demonstrated an impartial commitment to following the Constitution and the rule of law, President Obama has selected someone far outside the mainstream of American jurisprudence.”

Sessions told the Los Angeles Times: “I think most senators would say he’s beyond the mainstream.”

Justice John Paul Stevens recently said he’d decide whether or not he would retire from the Supreme Court within the next month. Meanwhile, White House officials say the president stands ready to nominate a successor should Stevens choose to step down, and experts say Solicitor General Elena Kagan is the likely candidate for the job.

But the fight over Liu may demonstrate not only the Republicans’ willingness to push back against any Obama judicial nominee – last year Sonia Sotomayor was originally thought of as a moderate, safe choice, but her confirmation vote was ultimately split down party lines – Liu himself is seen as a potential future high court pick.

Today’s hearing may serve “as an initial referendum on Goodwin Liu as a Supreme Court nominee,” Michael Gerhardt, a University of North Carolina law professor who advised committee Chairman Patrick J. Leahy (D-Vt.) during the Sotomayor hearings, told the Post.