Smooth Ride Expected For Supreme Court Nominee

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President Obama is said to be narrowing his list of potential Supreme Court nominees. A nomination is expected before June. No nominee for the U.S. Supreme Court has been defeated in modern times when the nominating president's party also controls the Senate.


President Obama is said to be narrowing his list of potential Supreme Court nominees, and he's expected to make his nomination before the month is out. Administration officials see a summer confirmation as serving two purposes. It would allow the new justice time to prepare for the court term in the fall. It would also leave Congress and the administration free to focus on the president's legislative agenda. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Even before Barack Obama took office, he knew he likely would have Supreme Court's vacancies to fill, and he personally generated a list for his staff to look at. Most often mentioned are three women who've already won Senate confirmation: federal judges Sonia Sotomayor and Diane Wood, and new Solicitor General Elena Kagan.

Meanwhile, conservative groups are organizing an opposition, and most observers expect that just about any nominee will face at least 30 no-votes from the GOP in the Senate. Still, barring some unforeseen scandal, conservatives know they have an uphill battle. No nominee for the U.S. Supreme Court has been voted down in modern times when the nominating president's party also controls the Senate.

President Obama is different from his predecessors in at least one regard. He's taught constitutional law for 12 years. Some leading liberal academics hope that the president will pick someone who can articulate an overarching liberal philosophy to rebut the conservative views articulated, for example, by Justice Antonin Scalia. Geoff Stone, former Dean of the University of Chicago Law School.

Professor GEOFF STONE (Former Dean, Chicago Law School): What Scalia has done, for example, has been wonderfully successful from that point of view. And I think the liberal justices need to do it, and they can do it. I have no doubt they can do it. But they need to be the right people.

TOTENBERG: Stone knew Obama when both taught at Chicago, as did David Strauss, the editor of the Supreme Court Review. But Strauss does not expect a nominee who's as liberal as Scalia is conservative.

Mr. DAVID STRAUSS (Editor, Supreme Court Review): I think the thing to remember about the president is that he is not from the generation of civil rights lawyers, who, of necessity, look to the courts for protection. He was never, for example, a public interest lawyer. His background is in community organizing and in politics. And people with that background tend to think of the courts as in a - being in sort of secondary role, not as being the big movers and shakers in society.

TOTENBERG: Strauss predicts that the president first priority in choosing a justice will be to pick someone who understands that the main avenue for change in society is politics.

STRAUSS: This is, after all, a president with a very ambitious legislative agenda. He doesn't seem to have a particularly ambitious judicial agenda.

TOTENBERG: That's borne out to some extent in Mr. Obama's book "The Audacity of Hope," which has an entire chapter on picking judges. Candidate Obama wrote that he was not unsympathetic to Justice Scalia's view, that courts should interpret the Constitution's words as they were originally intended by the founding fathers. Sometimes, he notes, those words are clear and simple, as in setting qualification for office.

But, he adds, much of the Constitution speaks in broad generalities that cannot tell us what the founders would have thought about modern dilemmas, for example, what freedom of speech means in the context of the Internet. Even more importantly, Mr. Obama observes, the founders disagreed vehemently among themselves about the meaning of their words.

President BARACK OBAMA: Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions, but about first principles - not just between peripheral figures, but within the revolution's very core.

TOTENBERG: Given what we know about this scrum, Mr. Obama wrote, it's unrealistic to believe that a judge 200 years later can somehow discern the original intent of the founders or ratifiers. Obama the pragmatist is on display in this chapter, as he notes it was Thomas Jefferson, not some liberal judge, who spoke of the wall of separation between church and state.

Pres. OBAMA: The founders may have trusted in God, but true to the Enlightenment spirit, they also trusted in the minds and senses that God had given them. They were suspicious of abstraction and liked asking questions, which is why at every turn in our early history theory yielded the fact and necessity.

TOTENBERG: Fact and necessity are now at President Obama's door, as he seeks to pick a nominee for the U.S. Supreme Court.

Nina Totenberg, NPR News, Washington.

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