Diversity, Not Politics, Key to Court Pick

Replacing liberal Souter, Obama won't change ideology, but can change makeup.

May 3, 2009, 3:14 PM

WASHINGTON, May 3, 2009— -- As President Obama considers his pick to replace retiring Supreme Court Justice David Souter, the buzz in Washington is less about political ideology and more about getting diversity on the bench.

Souter is one of the more liberal members of the court, so in naming his successor, Obama is not going to have a chance to swing the court further in line with his politics, the way former President Bush did with the two seats he was able to fill during his eight years in office.

Bush made his mark with two solidly conservative picks, Chief Justice John Roberts and Justice Samuel Alito. Roberts replaced the conservative Chief Justice William Rehnquist, but Alito took the place of the more moderate Sandra Day O'Connor, who was known for casting critical swing votes.

With the new lineup, the court took a turn to the right.

But since Souter tends to vote with the liberal-leaning wing of the bench, the ideological balance of the court is expected to remain the same, so lawmakers and interest groups are making it clear that they want to see a woman or a minority pick.

There are currently seven white men, one black man and one white woman on the bench of the nation's highest court. And each of them has served as a federal appeals judge.

"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," Sen. Patrick Leahy, D-Vt., said on "This Week."

Leahy, the chairman of the Senate Judiciary Committee, which 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.

On CBS' "Face the Nation," the newly-minted Democrat, Sen. Arlen Specter of Pennsylvania, agreed.

Referring to the current Justices' appeals court work, he said, "That means their experiences are limited. We have a very diverse country. We need more people to express a woman's point of view or a minority point of view, Hispanic or African-American, so that somebody who has done something more than wear a black robe for most of their lives."

Specter, who announced his switch from the Republican to Democrat last week, also serves on the Judiciary Committee, and as a Republican held that party's top spot on the panel.

Obama Says Legal Experience Not Only Criteria for New Justice

Obama made it clear on the campaign trail and reiterated Friday that legal experience is one facet of a good choice, but not the whole picture.

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation," he said after he interrupted the daily White House press briefing Friday.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes," in addition to dedication to the rule of law and understanding of the judicial role.

But Republicans seem skeptical. Appearing with Leahy on "This Week," Sen. Orrin Hatch, R-Utah, said the president's criteria present "a matter of great concern."

"If he's saying that he wants to pick people who will take sides -- he's also said that a judge has to be a person of empathy. What does that mean?" Hatch asked. "Usually that's a code word for an activist judge."

Sen. John Ensign, R-Nev., said on "Fox News Sunday" that "too many times, people on the Supreme Court and even in the Court of Appeals -- they have been making laws based on what they want to see in the Constitution, not on what the Constitution says.

"And that's what we have to get back to, is actually having people who look at the law and they read it for its plain reading," what the founders intended, he said. "They read it for what judicial precedent has been, instead of just what they want to see in the law."

Women, Minorities Seen as Possible Picks

But beyond ideology, the expectation to diversify the court is perhaps even more prominent since Obama is the first African-American president.

Leahy, also appearing on CNN's "State of the Union," said he and his wife drove to Vermont on Friday, expecting it to be "a nice, quiet time."

Instead, he said, "it was like a phone booth in our car all the way up with all these different groups, everybody else calling about who should be there" on the court.

From Solicitor General Elena Kagan, the former dean of the Harvard Law School, and Kathleen Sullivan, former dean of Stanford Law School and co-founder of the school's Constitutional Law Center, to federal appeals court judges Sonia Sotomayor, who would be the first Hispanic justice if nominated and confirmed, and Diane Wood, the names crossing the lips of Washington insiders speculating on who the pick will be have been the names of women.

Hatch said on "This Week" that he didn't necessarily agree with conservative groups who labeled some of the women "radicals," but said "there's no question that they are on the far left of the spectrum."

"I don't expect the president to pick somebody in the center or on the far right," he continued. "But, you know, it would be a slam dunk if he picked somebody who was center-left like Souter. Souter became very liberal, but he also stood for a lot of principles."

And Hatch contends that some of Obama's criteria are bothersome.

"He's bright enough to know that those comments basically indicate that politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics."

But with all the politics and pressure, the expectation and anticipation, Leahy looks back to Souter's confirmation process for a lesson.

"You will hear a lot on the far right or the far left who will say who he should or shouldn't go with. Remember, a lot of the left-wing groups picketed, actually picketed the Senate building that I'm in against me, because I was going to vote for David Souter," he said.

"They said it would be terrible, the end of the world if we confirmed David Souter," Leahy continued. "Now those same groups think David Souter was a great justice."

"The fact of the matter is that the president will make a good choice."

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