Friday, May 1, 2009

Obama May Lean Toward Centrist for First U.S. High Court Pick

President Barack Obama, given a chance to put his imprint on the U.S. Supreme Court, may seek out a judicial version of himself.

In picking a successor to retiring Justice David Souter, Obama will choose from a list of candidates who would add ethnic or gender diversity to the court and potentially be a coalition-builder. The most discussed possibilities -- federal appeals court judges Diane Wood and Sonia Sotomayor and U.S. Solicitor General Elena Kagan -- are well-credentialed lawyers whose track records suggest they would become moderate-to- liberal justices.

Obama “probably understands he is going to have more than one appointment,” said John O. McGinnis, a conservative legal scholar at Chicago’s Northwestern Law School who served in the Reagan and first Bush administrations. “It may well be he doesn’t want to make a very divisive appointment immediately given that he is pursuing so many other matters.”

Choosing a relative moderate would square with Obama’s campaign promise not to seek Supreme Court “activism,” while leaving open the possibility of a bolder nomination for a future vacancy. It would also help ensure an easy Senate confirmation, burnishing Obama’s centrist credentials while he seeks support for a health-care overhaul and other priorities.

Some conservatives say they are concerned that Obama, a former constitutional law professor, will select activists with an agenda for reshaping American law.

“It’s clear that President Obama will name a Supreme Court nominee who will embrace an extremely liberal judicial philosophy,” said Jay Sekulow, chief counsel of the Washington- based American Center for Law and Justice.

‘Heroes of Mine’

Indeed, in an interview last year with the Detroit Free Press, Obama hailed as “heroes of mine” former Chief Justice Earl Warren and former Justices William Brennan and Thurgood Marshall -- three men who were in the vanguard when the court began expanding constitutional rights for criminal suspects, women and minorities in the 1960s.

In his next breath, though, Obama said the time for that type of judicial philosophy had passed. “In fact, I would be troubled if you had that same kind of activism in circumstances today,” he said.

Obama yesterday said he would seek a nominee concerned about “how our laws affect the daily realities of people’s lives.” At the same time, he said he wanted a justice who “respects the rule of law.”

Democratic control of the Senate means Obama will have much leeway in selecting his nominee. Democrats hold a 59-40 advantage and have the prospect of a 60th vote should Democrat Al Franken be seated as a senator from Minnesota. That would be enough to overcome a procedural move to stall a nomination.

Bipartisan Support

Obama nonetheless may find himself drawn toward a nominee who would garner at least some bipartisan support. Such leading candidates as Wood, Sotomayor and U.S. Solicitor General Kagan all have the potential to draw Republican votes.

Wood, a 58-year-old judge on the 7th U.S. Circuit Court of Appeals, put her centrist credentials on display in March when she agreed almost entirely with Republican-appointed judges while discussing antitrust law at an American Bar Association luncheon in Washington.

In a free-speech case that divided the appeals court in 2006, she voted in favor of an Illinois university that revoked the student-organization status of a Christian group opposed to homosexual conduct.

Even so, her opinion contained limiting language, saying the university couldn’t discriminate against the group “based upon its evangelical Christian viewpoint”

Harvard Law School

Kagan, 49, won plaudits for smoothing over some of the ideological tensions that plagued Harvard Law School before she became dean there in 2003. Faculty member Charles Fried, who was President Ronald Reagan’s top Supreme Court lawyer, has suggested Kagan as a worthy Supreme Court nominee for a Democratic president.

Still, her nomination to become the first female solicitor general, the administration’s top courtroom lawyer, proved divisive. She won confirmation on a 61-31 vote with some conservatives saying they were concerned about her lack of experience and her opposition to on-campus military recruiting at Harvard.

As solicitor general, Kagan has taken some positions that have disappointed liberals, particularly on terrorism questions. She has yet to argue a case before the Supreme Court.

Sotomayor is a 54-year-old Hispanic appointed to her current post on the 2nd Circuit in New York by President Bill Clinton. Democrats recommended her to then-President George W. Bush as a possible nominee when Sandra Day O’Connor announced her retirement from the high court in 2005.

Divisive Nominee

Some legal conservatives are suggesting that Sotomayor would be a more divisive nominee than Wood or Kagan. Curt Levey, executive director of the Committee for Justice, put Sotomayor on a list of prospective nominees who are “so clearly committed to judicial activism that they make a bruising battle unavoidable.” Neither Wood nor Kagan were on that list.

In a high-profile race case now before the Supreme Court, Sotomayor backed New Haven, Connecticut, after it canceled planned promotions in its fire department because no blacks had scored well enough in testing to qualify.

Obama may be tempted to search beyond the realm of federal appeals courts. Every current justice came from one of those courts when nominated to the Supreme Court.

As a result, the justices haven’t always been “savvy to consequences in the world and political understandings,” said Barry Friedman, a New York University law professor.

Outside the Courts

A less traditional search might lead to a governor, possibly Michigan’s Jennifer Granholm or Deval Patrick of Massachusetts, or a state court judge such as Leah Ward Sears, the black chief justice of the Georgia Supreme Court. Homeland Security Secretary Janet Napolitano, a former Arizona governor, might fit that template.

Obama yesterday suggested he will cast a wider net. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book,” he said.

Obama will “ultimately choose someone who is a moderate, liberalish type,” said Lee Epstein, a constitutional expert at Northwestern Law School. “Whether he breaks this norm of federal judicial experience will be very interesting.”