President Obama Starts Discussions With Potential Supreme Court Picks

Should Obama consider make-up of court when weighing his decision?

April 21, 2010, 5:49 PM

WASHINGTON, April 21, 2010— -- President Obama has started discussions with potential Supreme Court nominees and today met with top senators -- both Democrats and Republicans -- to talk about the vacancy left by Justice John Paul Stevens' retirement.

Besides speaking to several potential nominees, President Obama is reviewing their legal writings, their speeches and their briefs, among any number of other considerations, as he weighs his decision.

The main things Obama is looking for are fidelity to the law and the Constitution, he told CNBC, adding that he is looking for "somebody who has the kind of life experience so they understand how their decisions are impacting ordinary people."

Obama cited "life experience" in 2009 as he weighed his options before nominating Judge Sonia Sotomayor for the Supreme Court.

But when Obama states that criteria this time, does he mean he might consider someone with experience outside the judiciary?

Right now, for the first time in history, every member of the Supreme Court is a former appellate judge, coming from what Judiciary Committee Chairman Sen. Pat Leahy, D-Vermont, calls the "judicial monastery."

The president and his team are taking any number of factors into consideration and some commentators, including former President Bill Clinton, are pushing Obama to consider someone who is not a judge.

"Some of the best justices in the Supreme Court in history have been non-judges, people that, as Hugo Black once famously said, had been sheriffs and county judges, people that have seen how the lofty decisions of the Supreme Court affect the ordinary lives of Americans," Clinton said. "I hope he'll take a look at somebody who hasn't been a judge."

Senate Majority Leader Harry Reid, D-Nevada, said after his meeting with President Obama today at the White House that he supported him going in that direction.

"I hope that we would have someone who is not a circuit court judge," Reid said. "I personally feel it should be someone who is an academic, someone who has had a public office, someone who is an outstanding lawyer. And the president said that he will take that into consideration."

"We have not had a politician on the court for a long time," said Jeffrey Rosen, the legal affairs editor of The New Republic. "It's striking that a majority of the court that decided Brown v. Board of Education -- the great segregation case in 1954 -- were former politicians."

Former President Bill Clinton to Obama: See What Court Is Missing

Other considerations for Obama may include gender, race and religion -- all part of fashioning a court that looks like the rest of the country.

Former President Clinton seemed to suggest that the president should look at the Supreme Court like a puzzle and urged Obama to "first of all see what the court is missing."

When Justice Stevens retires at the end of this term, for instance, there will be no Protestants on the court. The United States is roughly 51 percent Protestant, according to a 2008 survey by the Pew Forum on Religion and Public Life.

The Supreme Court was entirely Protestant until 1836, when the first Catholic justice, Roger Taney, was appointed. In 1916, Louis Brandeis became the first Jewish justice on the Court.

"Does it matter if he puts a Catholic or a Jewish person, or someone of another faith on a court?" Clinton asked on ABC News' "This Week." "There would be no Protestants on the Supreme Court. Does that matter?"

Though such questions are being raised, "In the end, I don't think that sort of thing is going to govern the choice," said National Journal's Stuart Taylor.

Another possible issue is that, with the eight remaining justices all alumni of Ivy League law schools, including seven from Harvard or Yale, some observers suggest the next nominee should come from somewhere else.

Taylor said there are more than enough Harvard and Yale alumni on the court "for sure," but perhaps a nominee's law school may not matter much.

"I'm not sure you add intellectual diversity if you take somebody from the University of Texas Law School, for example, like Judge [Diane] Wood," Stuart said. "How diverse is that after they've been out for 30 years or 20 years?"

Of the nine current short listers, four are non-Ivy Leaguers -- Judge Wood, Judge Sidney Thomas, Judge Ann Claire Williams, and Homeland Security Secretary Janet Napolitano. The others -- Elena Kagan, Merrick Garland, Jennifer Granholm, Justice Leah Ward Sears and Harvard Law School Dean Martha Minow -- all have Ivy League backgrounds.

Today, Obama said he would apply no "litmus test" when it comes to whether a nominee supports abortion rights, but added that he would want a nominee who would interpret the Constitution as taking into account individual rights, including women's rights.

"The bottom line is that the president is going to want to look for somebody who has the ideology he likes ... who is confirmable as he wants them to be," Taylor said. "He doesn't want a big fight. And [he'll look at] who seems like he or she would be a very good justice."

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