Souter's Retirement Is Obama's Opportunity

The upcoming retirement of Supreme Court Justice David Souter gives President Barack Obama his first chance to name someone to the nation's highest court. For anyone who's been a constitutional law professor — as the president was at the University of Chicago — getting to reshape the court is the ultimate fantasy. But with the opportunity comes a dizzying array of choices and complications.

Guest host Lynn Neary speaks with NPR legal affairs correspondent Nina Totenberg about how Obama will approach the choice and who he might nominate.

Battle Looms Over Choosing Souter's Successor

Let the battle begin — or maybe not.

Just hours after news broke that Supreme Court Justice David Souter plans to retire, conservative groups launched a fusillade of attacks branding as "radical" and "hard left" candidates believed to be on the White House short list.

And anti-abortion groups have already promised war if President Obama, as expected, nominates a replacement who supports legalized abortion — as Souter does.

But despite the clamor, the political reality in a Washington controlled by Democrats strongly suggests that skirmishes with the right will be relegated to a springtime sideshow, leaving the president fully in control of the main stage.

"Whoever Obama picks will be confirmed," says Jonathan Adler, a court expert and professor at Case Western Reserve University School of Law.

The caveats, he added, include lapses in the vetting process, mismanagement of the nomination or the unlikely event that Republicans can or will mount a battle in a Senate where Democrats are verging on securing a 60-vote filibuster-proof majority.

Even though the odds of derailing an Obama pick may be long, conservatives are rallying their base with warnings that the court is in danger of shifting to the left.

Ed Whelan of the Ethics and Public Policy Center says Souter's replacement could provide the pivotal fifth vote for hot-button policies conservatives oppose. Those include, he says, same-sex marriage, stripping "under God" out of the Pledge of Allegiance, sanctioning human cloning and "micromanaging the government's war powers."

What Obama Wants

In a surprise appearance at the daily White House press briefing Friday afternoon, Obama said he had spoken with Souter, and lauded the justice's service.

Obama praised Souter for his "integrity, equanimity and compassion," his work ethic and sense of humor.

And he spoke about what he is looking for in a new justice.

"I will seek someone who understands that justice isn't about some abstract legal theory or footnotes in a case book," Obama said. "It is also about how our laws affect the daily realities of peoples' lives — whether they can make a living, care for their families, whether they feel safe in their homes and welcome in their own nation."

"I view that quality of empathy, of understanding and identifying with peoples' hopes and struggles as an essential ingredient for arriving at just decisions and outcomes," he said.

Keeping The Ideological Mix

However, most court observers think it unlikely that any Obama appointment to replace the liberal Souter will change the ideological mix of the court.

So the more pressing questions surround what Obama's pick will say about the new president, who taught constitutional law at the University of Chicago Law School, as he begins to reshape a divided court with what could be the first of several appointments in coming years.

Will he, as expected, add another woman — only the third in history — to the Supreme Court? Will he make history by naming the country's first Hispanic justice?

And will he listen to the urgings of his party's left wing and pick a nominee who matches the combative judicial temperament of conservative Justice Antonin Scalia?

Looking For Hints

There are strong hints at the answers to all these questions.

In his book The Audacity of Hope, Obama called the Constitution a "living document" that "envisions a road map by which we marry passion to reason, the ideal of individual freedom to the demands of the community."

As a senator questioning then-chief justice nominee John Roberts four years ago, Obama admonished Roberts for a lack of empathy after he likened the role of a judge to that of an umpire.

Ninety-five percent of cases can be judged on intellect, Obama has said, but in the other 5 percent of cases you've "got to look at what is in the justices' heart."

Women Lead The List

Though he could surprise court watchers, as he looks for a justice with what he considers the right mix of intellect and heart, Obama is expected to pick a woman to join Justice Ruth Bader Ginsburg on the bench. Ginsburg has been the lone female jurist since trailblazing Justice Sandra Day O'Connor stepped down in 2005.

"He would have to use up a fair amount of credit with constituencies that matter to him if he doesn't nominate a woman," says Mark Tushnet, a Harvard Law School professor and Supreme Court historian.

Among the top tier of possible nominees are Sonia Sotomayor, a U.S. Court of Appeals judge for the 2nd Circuit; Diane Wood, a U.S. Court of Appeals judge for the 7th Circuit; and Elaine Kagan, a former Harvard Law School dean recently appointed U.S. solicitor general.

Also being mentioned are Kim McLain Wardlaw, a U.S. Court of Appeals judge for the 9th Circuit, and Leah Ward Sears, chief justice of the Georgia Supreme Court.

Sotomayor and Wardlaw are of Hispanic descent; Sears is African-American.

Avoiding An All-Out Battle

That top tier does not include a Scalia-type personality, says Adler, which would allow Obama a more efficient path through the confirmation process — something he could be looking for as he fights real battles on other fronts, from national security to health care policy.

The short-listers aren't "wild-eyed or radical," Adler says, And, he says, they appear to be, like Obama's appellate nominees so far, "fairly reliable liberal justices with the pedigree and background that make them difficult to oppose."

Wendy Long of the conservative Judicial Confirmation Network disagrees, characterizing Wood, Sotomayor and Kagen as "radicals."

"The president and senators need to be careful about, respectively, nominating and appointing a hard-left judicial activist," says Long, who cautioned against choosing a candidate based on what "is in her own heart instead of what is in the Constitution and laws."

The Odds Favor Obama

The president's political instincts, and his usual pragmatic approach to tasks, suggest that he won't pick a nominee with a temperament similar to Scalia's.

Adler argues that steering away from a provocateur will work in the president's favor in his quest to shape the bench. "The justice with the loudest roar is not always the one who is most influential," Adler says. "That's easy to forget when reading an opinion and enjoying its rhetorical sophistication."

Even so, Obama's political constraints are minimal, says Tushnet. "The political situation is quite favorable," he says, adding that Obama has proved himself "really good as a politician."

Tushnet is among court watchers who say they believe the president can go as far out on a limb with his nomination as he likes.

"My prediction would be that he wouldn't really care" about using up political capital, Tushnet says.

The path for an Obama nominee in the Senate is near barrier-free: Democrats, who just added former GOP Sen. Arlen Specter of Pennsylvania to their ranks, appear on the brink of securing a 60-vote filibuster-proof majority before voting to confirm a new nominee.

And that 60th vote, Minnesota's Al Franken, whose recount win will be reviewed next month by that state's Supreme Court, could be added before a confirmation vote is taken.

The president pledged to consult with members of both parties, and expects to have a new justice confirmed by the time the high court opens its fall session on the first Monday in October.

At this early point in the process, many Democrats are expecting a historic nomination — a woman, a Hispanic or both. But Supreme Court nominations are the ultimate presidential prerogative, and only Obama knows whether there's a wild card candidate out there who may make his or her way to the high court.

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