With the news last night that 69-year-old Supreme Court Justice David Souter will retire, President Obama — a former constitutional law lecturer — will get to select a nominee to the Supreme Court.
Given Souter’s liberal inclinations, the president’s pick will not likely alter the political makeup of the court, but the opportunity will allow him to shape the court more to his liking.
And it does open up a new possible battleground on Capitol Hill. Few pols have more experience in Supreme Court nominee battles than former Judiciary Committee Chairman, now vice president, Joe Biden, and his Chief of Staff Ron Klain — who worked on Supreme Court nominee battles on that Senate Committee, at the Justice Department, and in the Clinton White House. But Republicans are already reminding reporters that President Obama is the first U.S. president in American history to have voted to essentially filibuster a Supreme Court nominee, Justice Samuel Alito.
"I would not have nominated Clarence Thomas," President Obama said last August. "I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution.
"I would not nominate Justice Scalia," he said, "although I don’t think there’s any doubt about his intellectual brilliance, because he and I just disagree. You know, he taught at the University of Chicago, as did I, in the law school…
"You know, John Roberts, I have to say was a tougher question only because I find him to be a very compelling person, you know, in conversation individually," Mr. Obama went on. "He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the bench confirms the suspicions that I had and the reason that I voted against him. One of the most important jobs of, I believe, the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches… And I think that he has been a little bit too willing and eager to give an administration, whether it’s mine or George Bush’s, more power than I think the Constitution originally intended."
So what has the president said on the type of justice he would appoint?
“Change means a president who will stand up for choice, who understands that five men on the Supreme Court don’t know better than women and their families and their doctors about what’s best for their health," he said in Coral Gables, Florida, on September 19.
In Farmington Hills, Michigan, that same month, then-Sen. Obama said, "I taught constitutional law for ten years at the University of Chicago and so this stuff matters to me a lot too. And you know obviously there are some people who focus on what would happen to Roe v Wade. I think it’s fair to say if John McCain wins, that would be overturned."
Mr. Obama said abortion isn’t the only issue on his mind when it comes to picking a justice. "There are issues related to presidential power and whether for example the president can issue warrantless wiretaps," he said. "I think that we can surveil people who do us harm but make sure that somebody is watching what the president’s doing even if I am president to make sure that we’re doing it right. That’s part of our checks and balances. But there are some bread and butter issues -– people don’t realize that not all of these issues are not sexy, high profile issues –- some of them are bread and butter issues."
He went on to talk about the Lilly Ledbetter act to help women fight pay discrimination, which was the first legislation he signed into law.
"I don’t believe that the courts should spend all their time intervening in our daily affairs but you know what we do expect, what we should expect from our laws and from our courts is that everybody gets a fair shake and that everybody has access to the courts," then-Sen. Obama said. "That everybody gets their day and that’s what I’m going to be fighting for when I am President of the United States."
In Lafayette, Indiana, a year ago, Mr. Obama said the U.S. needs "a Supreme Court who is going to stop giving the executive branch — whether its me or George Bush or John McCain or whoever it is — stop giving the president carte blanche to do whatever it is that they want because that’s not the way our democracy is designed."
In New York City last July, Mr. Obama said that beyond Lilly Ledbetter and Roe v Wade, "the Supreme Court also affects women’s lives in so many other ways –- from decisions on equal pay, to workplace discrimination, to Title IX, to domestic violence, to civil rights and workers’ rights. And the question we face in this election is whether we’ll have judges who demonstrate sound judgment and empathy, who understand how law operates in our daily lives, who are committed to upholding the values at the core of our Constitution -– or judges who put ideology before justice, with our fundamental rights as the first casualty."
In Wayne, Pennsylvania, in June, the president talked about the "5-4 decision -– a decision that said we are going to live up to our ideals when it comes to rule of law. Basically what it said was those prisoners that we hold in Guantanamo deserve to be able to go before a court and say ‘it wasn’t me’ or ‘I didn’t do it.’
"Now that is -– you know that principle of habeas corpus that a state cant just hold you for any reason without charging you and without giving you any kind of due process –- that’s the essence of who we are. I mean you remember during the Nuremberg trials, part of what made us difference was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday. John McCain thinks the Supreme Court was wrong. I think the Supreme Court was right."
Mr. Obama said the Court was "just one justice away" from overturning Roe v Wade.
"And you know Justice Stevens is 85, 86, 87? You know, he wants to retire I suspect sometime soon."
With only one woman on the high court it seems likely that the president will select a female for the position, and some possible candidates include former Harvard Law School Dean and Solicitor General Elena Kagan; 9th Circuit U.S. Court of Appeals Judge Kim McLane Wardlaw; 2nd Circuit U.S. Court of Appeals Judge Sonia Sotomayor; 7th Circuit U.S. Court of Appeals Judge Diane Pamela Wood; and George Supreme Court Chief Justice Leah Ward Sears.
– Jake Tapper and Sunlen Miller