For Obama, the legal legacy begins with Souter replacement

Photo: Supreme Court Justice Souter to Retire: David Souters Retirement Has Already Sparked Speculation About His ReplacementABC News Photo Illustration
The president interrupted today's White House press briefing to confirm Justice David Souter's decision to retire from the U.S. Supreme Court.

As President Obama considers how to make the most of a rare opportunity to appoint a Supreme Court justice, he is getting advice from many fronts — including Senate Judiciary Committee leaders and law professors, women's advocates and Hispanic groups. On Sunday, Pennsylvania's just-turned-Democratic senator, Arlen Specter, weighed in as well.

And why not? Supreme Court justices are appointed for life, and they may help determine the law long after a president leaves office. So even as Obama wrestles with economic and foreign policy challenges that could lead to major changes in America, a court appointment could become one of the most significant acts of his tenure.

The appointee who would succeed liberal Justice David Souter is unlikely to shift the ideological balance of the court, but she or he could help set a new tone or bring a different type of leadership to the divided bench.

As Obama and his aides screen candidates to make the first Democratic nomination in 15 years, well-established — and often overlapping — judicial models can guide his choices and shape public expectations.

For example, all nine of the current justices are former U.S. appeals court judges, elevated by presidents (from Gerald Ford to George W. Bush) who followed a familiar script of looking to lower courts for nominees.

During the campaign, however, Obama expressed his preference for a justice with real-world experience in the mode of former California governor Earl Warren, who presided as the court struck down school segregation and helped generate a civil rights revolution.

"I will seek someone who understands that justice isn't about some abstract legal theory," Obama said Friday. "It is also about how our laws affect the daily realities of people's lives."

That view was embraced Sunday by Specter and Sen. Patrick Leahy, D-Vt., key members of the Senate Judiciary Committee, which will question the nominee before the full Senate votes.

"I want the president to pick somebody for all the American people," Leahy said on CNN's State of the Union. "I'd like to see ... someone who has real-life experiences, not just within a judicial monastery."

For a court with seven white men, a black man and a white woman, Obama could opt for a "diversity" candidate. Since Sandra Day O'Connor retired in 2006, Ruth Bader Ginsburg has been the court's only woman, and groups such as the National Women's Law Center are pushing for another female nominee.

Clarence Thomas, named in 1991, is the court's only African-American member, and there never has been a Hispanic or Asian American on the bench. The Congressional Hispanic Caucus and other groups are urging Obama to represent their backgrounds on the high court.

Meanwhile, Republicans such as Utah Sen. Orrin Hatch have said Obama should tap a nominee with appeal across the political spectrum who will not bring "personal preferences to the law." Yet with the Senate at close to 60 Democrats, Obama is unlikely to need a true "compromise" candidate as have some presidents facing a Senate controlled by the opposite party.

Obama, a Harvard law graduate who taught law at the University of Chicago, comes to the task with a larger constitutional vision and a greater understanding of past judicial models than many presidents.

"President Obama is in the rare position of having a great deal of freedom in his choice and the types of people he considers," says Christopher Eisgruber, Princeton University provost and author of the 2007 book The Next Justice: Repairing the Supreme Court Appointments Process. "He has a very strong majority in the Senate. He has enormous popularity. ... Like most people, I would be very surprised if it is not a woman," Eisgruber says, adding he hopes Obama departs from the model of picking a lower court judge. "Diversity of experience is very important."

When Obama announced Friday that Souter would retire this summer, the president said he wanted someone with "that quality of empathy, of understanding and identifying with people's hopes and struggles."

As he brings his own priorities to the task, Obama can tap four basic models from the recent past: the demographic diversity candidate, the tried-and-true judge, the politician and the compromise candidate.

The diversity candidate

A selection that increases the court's demographic diversity could give new voice to a group that has been absent or underrepresented there. It also could build a president's support among a political constituency.

In 1967, when President Johnson chose Thurgood Marshall — a civil rights advocate who successfully argued against "separate but equal" school segregation — to be the first African American on the court, Johnson said it was "the right thing to do, the right time to do it, the right man and the right place." Fourteen years later, in 1981, Ronald Reagan fulfilled a campaign promise and chose the first female justice, O'Connor.

Ginsburg has said she wants another woman on the bench.

If Obama seeks a woman, it could help the chances of prominent female lawyers, including Elena Kagan, a former Harvard law school dean whom Obama tapped as the first female U.S. solicitor general, the government's top lawyer before the court.

Another choice in academia could be Stanford University law professor Kathleen Sullivan.

Some other prestigious female lawyers would bring added ethnic or racial diversity to the court. Among them: Sonia Sotomayor, a judge on the U.S. Court of Appeals for the 2nd Circuit, of Puerto Rican descent; Leah Ward Sears, chief justice of the Georgia Supreme Court, who is black; and Teresa Wynn Roseborough, chief litigation counsel for MetLife, who also is black. Roseborough, a former deputy assistant attorney general, has connections in Washington, including to Attorney General Eric Holder.

Among prominent male lawyers who would broaden the court's diversity are Harold Hongju Koh, dean of Yale University's law school, a Korean American whom Obama has nominated to be legal adviser to the State Department; and Massachusetts Gov. Deval Patrick, an African American who was assistant attorney general for civil rights under President Clinton and is a longtime friend of Obama's.

The tried-and-true judge

Tapping a lower court judge provides a president and his vetting staff with a record that could show how a nominee might vote as a justice. This is not a foolproof method: Justice Harry Blackmun, a Nixon appointee, increasingly voted with liberal justices over his 24-year tenure.

Another possible advantage of a judicial veteran is that she or he likely would be at ease discussing the law in nationally televised Senate Judiciary Committee hearings and, once on the bench, quickly would adjust to the demands of the high court.

This type of candidate often has been viewed as the safest choice. A contender in this category — and a diversity candidate — would be Judge Diane Wood, of the Chicago-based U.S. Court of Appeals for the 7th Circuit, appointed in 1995 by Clinton. Wood previously worked in the Justice Department's antitrust division and taught at the University of Chicago law school when Obama was on the faculty there.

Another strong candidate in this category, also a woman, would be Sotomayor. She was appointed to a U.S. trial court in 1992 by the first President Bush, and elevated to the appeals court in 1997 by Clinton. She was born and grew up in the Bronx.

The politician

The choice of a political figure could signal that the president wants a broader base of experience for a justice tasked with resolving the legal dilemmas of American society. In addition, much of the high court's work involves interpreting the policies of legislators. Someone who has served in elective office would have experience making the laws that are typically at the core of disputes before the court.

"I would hope that he would look beyond the circuit courts of appeals which now populate the Supreme Court and pick someone with greater world experience and diversity," Specter said Sunday on NBC's Meet the Press. "It would be good to get people who know something besides wearing a black robe."

When Clinton had his first opportunity to name a justice, in 1993, he wanted to go with a politician in the mode of Warren. Clinton first considered then-New York governor Mario Cuomo, who declined. Clinton then chose women's rights legal advocate Ginsburg, whom he termed "the Thurgood Marshall" of women's rights, reflecting his interest in a "diversity" model.

Among political figures who could be in the mix now are Michigan Gov. Jennifer Granholm, a former state attorney general who, like Obama, has a Harvard law degree; and Homeland Security Secretary Janet Napolitano, Arizona's former governor and attorney general. Another politician-lawyer is Patrick, also a Harvard law graduate.

The compromise candidate

A compromise candidate could guarantee that a president who has many other pressing items on his domestic agency doesn't get distracted. Obama has stressed the benefit to democracy of a nominee embraced by senators of both parties, rather than one who is politically polarizing.

In 1975, after Watergate, President Ford chose a lawyer with stellar credentials and no political baggage who easily could be confirmed: John Paul Stevens was approved by the Senate, 98-0.

Reagan opted for the opposite of a compromise candidate and took an ideological route with Robert Bork in 1987. The Democrat-controlled Senate rejected the conservative federal judge.

Obama said Friday he will consult with senators of both parties.

"Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents," he wrote in his 2006 book, The Audacity of Hope, "it behooves a president — and benefits our democracy — to find moderate nominees who can garner some measure of bipartisan support."

Yet with nearly 60 Democratic votes in the Senate, Obama is unlikely to have to seriously compromise on his choice. He supports liberal priorities such as abortion rights and affirmative action, and it is likely any nominee would reflect that.

Hatch warned Sunday that he believed Obama's interest in qualities like "empathy" could be code "for an activist judge."

"I hope that he will pick somebody who will not put their own personal predilections into law," Hatch said on ABC's This Week With George Stephanopoulos, "but follow the law and do what really is right."

Hatch and other Republicans already have approved one potential nominee, former Harvard law dean Kagan, when they confirmed her as solicitor general.

Kagan has won praise across the ideological spectrum — including from former solicitor general Theodore Olson, a Republican — for her legal experience and skill at leading an array of political thinkers at Harvard. The Senate confirmed her, 61-31.

Whatever models Obama considers, he now has an opportunity he once only mused about. "I loved the law school classroom," he wrote about teaching constitutional law, "the stripped-down nature of it, the high-wire act of standing in front of a room at the beginning of each class with just a blackboard and chalk."

That, Obama is likely to find, is nothing compared with the high-wire act of choosing a Supreme Court nominee.