Court Pick Might Not Come From the Bench
Will Obama Look Outside the "Judicial Monastery" to Fill Court Vacancy?
By ARIANE de VOGUE, JAN CRAWFORD GREENBURG and THERESA COOK
May 19, 2009—
The official reason for her trip to the White House today is to announce new fuel efficiency and auto emissions standards. But with a Supreme Court opening to fill, Michigan Gov. Jennifer Granholm's visit has touched off a flurry of speculation that she could be meeting with the president about the possibility of filling that spot.
Granholm's name appears on many speculated short lists, as she's a dynamic and talented politician with strong academic credentials. She graduated with honors from Harvard Law School, clerked on the Cincinnati-based federal appeals court and worked as a federal prosecutor before she went into politics.
But unlike all nine of the current justices, each of whom served as a federal appeals judge before ascending to the Supreme Court, Granholm and several other non-judge potential candidates are not from the so-called "judicial monastery."
Elena Kagan currently serves as solicitor general and is in the top tier of Obama's list for the Supreme Court. Although she has spent most of her career teaching law, she has never served as a judge and has hardly ever even appeared before a judge to argue a case.
Charles Fried, a Kagan supporter who held the solicitor general post during the Reagan administration, called the fact that she has little courtroom experience "just a mechanical thing" that is not important in the larger scheme. "There have been lots of justices who were not judges. She can handle 130 Harvard law students," he said, so "she can handle this wild bunch on the bench."
The Obama administration has refused to comment on potential candidates, but other names on the lips of Washington insiders include Homeland Security Secretary and former Arizona Gov. Janet Napolitano, Massachusetts Gov. Deval Patrick and Washington Gov. Christine Gregoire. Patrick also attended today's White House event, though speculation about his potential rise to the court is less intense.
Rounding out the speculative lists are law professors and lawyers in private practice or employed by corporations, including Teresa Wynn Roseborough, who heads the litigation department of MetLife, Inc., Kathleen Sullivan, former dean of Stanford Law School who is now in private practice, and Pam Karlan, who heads Stanford Law School's Supreme Court Litigation Clinic.
Obama Seeking Life Experience, Empathy in Supreme Court Pick
As a candidate for president, Obama repeatedly stated that he wanted to appoint Supreme Court nominees that not only had sharp legal minds, but also individuals with broader life experience. In 2008 he said, "some of our best justices have been people who knew a little bit about how the world works."
He continued, "I want my judges to understand that part of the role of the court is to look out for the people who don't have political power, the people who are on the outside, the people who aren't represented, the people who don't have a lot of money"
One quality in particular he highlighted on the campaign trail and again in confirming the news of David Souter's retirement is empathy.
Despite the current makeup of the court, historically it hasn't been that unusual for presidents to look for candidates off the bench.
William Rehnquist, who was the Chief Justice before his death in 2005, wasn't a judge before taking his place on the court, and neither were former justices Lewis Powell, Hugo Black and Robert Jackson, among others.
As for politicians, most recently, retired Justice Sandra Day O'Connor had held elected office in her home state of Arizona, though she was a judge there before her move to Washington. Several decades before O'Connor, President Eisenhower tapped another politician, Earl Warren, to serve as Chief Justice.
At the time, Warren was serving his third term as California governor, and had five years earlier joined the ticket of Republican presidential candidate Thomas Dewey, who lost the election to Harry Truman.
But even if Obama looks to the political world to fill the post, there's no guarantee that the candidate would want to trade a life of legislation, press conferences and public debate for one that requires the parsing of legal minutiae and relative obscurity.
Weeks before he announced his retirement last month, Souter, who was known to loathe the Washington scene, told an audience that he had to give up outside interests each October until June. He compared it to a "sort of annual intellectual lobotomy" -- not exactly the lifestyle a politician or other public figure might relish.
Lawmakers and the Supreme Court Justice Vacancy
The question of how politicians would approach one of their own kind nominated to the Supreme Court remains to be seen, given their propensity to debate an issue, including the fitness of a candidate for a top post in the federal government.
Just days after Souter tendered his retirement, the chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., pointed out the opportunity to add more racial and gender balance to the court, as its current roster includes seven white men, one white woman and one black man.
"I would like to see certainly more women on the court. Having only one woman on the Supreme Court does not reflect the makeup of the United States. I think we should have more women. We should have more minorities," Leahy said on "This Week with George Stephanopoulos."
Leahy, whose committee holds confirmation hearings for Supreme Court nominees, also said he'd like to see more justices from "outside the judicial monastery" -- people who have life experience that didn't necessarily include donning a black robe.
But Leahy's counterpart on the panel disagrees.
Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, has said he believes Obama should choose a judge as his Supreme Court nominee.
"There are a lot of people who have experience in the world, but I wouldn't think they would be a Supreme Court justice," Sessions told the Wall Street Journal.
Another Republican on the committee, Sen. Orrin Hatch of Utah, questioned the qualifications Obama has laid out, specifically the notion of an empathetic judge.
"It's a matter of great concern, if he's saying that he wants to pick people who will take sides," Hatch said earlier this month on "This Week."
"He's also said that a judge has to be a person of empathy -- what does that mean? Usually that's a code word for an activist judge."
Obama has stated that he wants a nominee to be confirmed by the start of the court's October term, so the lawmakers should have their chance to decode and debate soon enough.