Thursday, May 7, 2009

Obama Court Decision Shaped by Years, Wife’s Advice

Barack Obama’s advisers began identifying potential Supreme Court nominees before he took office. He had done the same: At two December meetings, the president-elect brought his own list of prospects.

“It’s something he’s been thinking about long before he even thought he was going to be president,” said Abner Mikva, a retired federal judge who is an Obama confidant.

Now on the verge of making his first appointment, Obama, 47, is relying on a circle of advisers that includes White House Counsel Gregory Craig, deputy counsel Cassandra Butts, Vice President Joe Biden, a former chairman of the Senate Judiciary Committee that confirms high-court nominees, and a fellow Harvard Law School graduate: his wife, Michelle.

As a one-time professor of constitutional law at the University of Chicago, Obama is bringing greater personal knowledge and expertise to the decision than any recent president.

“He’s the first president in modern history who’s a serious student of constitutional law,” said political analyst Charlie Cook, editor of the nonpartisan Cook Political Report in Washington. “This is something the guy’s got a passion for. Nobody has to explain to him the significance of a Supreme Court appointment.”

Obama has indicated his nominee will be expected to side with the more liberal members of the court who tend to favor abortion rights and support affirmative action.

Earlier Involvement

The president is getting deeply involved far earlier than many of his predecessors in the Washington ritual of replacing one of the nine Supreme Court justices, all of whom hold lifetime appointments.

As a Democratic senator from Illinois, he voted against two sitting justices -- Chief Justice John Roberts and Associate Justice Samuel Alito. And Republicans haven’t forgotten.

“President Obama better hope we are better to his nominees than he was as a senator to President Bush’s nominees,” said Senator Lindsey Graham, a South Carolina Republican.

Robert Gibbs, the White House spokesman, ruled out an Obama announcement this week. He left open the possibility it could be made as early as next week.

“They’ve been working on this forever,” said Christopher Edley, a senior Obama campaign adviser and dean of the University of California-Berkeley law school who was one of Obama’s professors at Harvard. Edley was a special counsel to President Bill Clinton, himself a former professor of constitutional law at the University of Arkansas.

Pre-Election Planning

Team Obama began planning for Supreme Court openings immediately after he won the Democratic nomination in August. Those efforts gathered intensity after the November election.

On April 30, one day before Associate Justice David Souter announced his decision to retire, senior White House aides held a planning session in anticipation of such an eventuality. Rahm Emanuel, the White House chief of staff, is overseeing the search, according to administration officials.

Potential nominees include Diane Wood, a federal appeals court judge in Chicago who served with Obama on the University of Chicago Law School faculty, and Sonia Sotomayor, a federal appeals court judge in New York who would be the first Hispanic justice.

Granholm, Kagan

Other possibilities are Michigan Governor Jennifer Granholm, who would add a politician with executive experience to a court now entirely composed of former appeals court judges, and Elena Kagan, who Obama appointed as the first female U.S. solicitor general, the federal government’s top Supreme Court lawyer.

Biden will participate in the decision because he is a veteran of the battles over Supreme Court nominations in the Senate Judiciary Committee, which he chaired as a Democratic senator from Delaware.

The vice president’s chief of staff, Ron Klain, also is a battle-tested veteran of the process, both as a White House aide and congressional staffer.

Biden’s role will be “same as always -- counselor, adviser, experienced hand,” Klain said.

Another unpredictable dynamic in the confirmation process is the position Alabama Senator Jeff Sessions will take as the top Republican on the Judiciary Committee.

Sessions was nominated to the federal bench by then- President Ronald Reagan. His nomination was rejected by the Senate Judiciary Committee after Democrats said he showed racial insensitivity while prosecuting vote-fraud cases as a U.S. attorney.

Calls to Republicans

After Souter, 69, announced May 1 that he intended to resign, Obama wasted little time to begin consulting lawmakers. He has already called Sessions as well as Republican Senator Orrin Hatch of Utah, who was the top Republican on the judiciary panel until Sessions took over the spot.

On May 1, when Obama announced Souter’s intention to resign at the end of the court’s term, around July 1, the president said he would select a replacement who has “a sharp and independent mind and a record of excellence and integrity” as well as an appreciation of “how our laws affect the daily realities of people’s lives.”

That didn’t surprise Mikva.

He and Obama often discussed the professional qualifications and personal qualities that make great Supreme Court justices, Mikva, 83, said.

Obama understands the Constitution “and what the real intent was and how that fits into the modern context,” Mikva said.

“That’s the kind of constitutional law he taught,” he said. “And he has his own ideas of who the great justices were.”