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Law School Past Shapes Obama's View On Justices

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Law School Past Shapes Obama's View On Justices

Election 2008

Law School Past Shapes Obama's View On Justices

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ROBERT SIEGEL, host:

From NPR News, this is All Things Considered. I'm Robert Siegel.

MICHELE NORRIS, host:

And I'm Michele Norris. One of the most powerful legacies a president can leave behind is the choice of a Supreme Court justice. As the current members of the court get older, the likelihood increases that the next president will appoint one, two, even more justices. Yesterday, NPR legal affairs correspondent Nina Totenberg reported on how a President McCain might go about choosing Supreme Court nominees. Today, what might a President Obama do?

NINA TOTENBERG: On the campaign trail, John McCain mocks Barack Obama as an elitist and links him to professors and activists. Obama was, in fact, a professor, having taught constitutional law for 10 years at the University of Chicago. And in his book, "The Audacity of Hope," he devotes an entire chapter to the subject. He says that he has some sympathy for Justice Antonin Scalia's view that the Constitution's language is perfectly clear on some matters and can be strictly applied. But in the end, he says, much of the Constitution speaks in generalities that cannot tell us what the founders would have thought about modern dilemmas, whether, for example, National Security Agency data mining is constitutional or what freedom of speech means in the context of the Internet.

Senator BARACK OBAMA (Democrat, Illinois; Democratic Presidential Nominee): Anyone like Justice Scalia looking to resolve our modern Constitutional dispute through strict construction has one big problem. The founders themselves disagreed profoundly, vehemently on the meaning of their masterpiece. 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: The professorial Obama is on display in this chapter, refusing to provide simple answers or formulas and rejecting so-called bright lines.

Senator OBAMA: It's not just absolute power that the founders sought to guard against. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth - the infallibility of any idea or ideology or theology or ism, any tyrannical consistency that might lock future generations into a single, unalterable course.

TOTENBERG: He concludes this way.

Senator OBAMA: In sum, the Constitution envisions a road map by which we marry passion to reason - the ideal of individual freedom to the demands of community. And the amazing thing is that it's worked.

TOTENBERG: University of Chicago law professor Cass Sunstein has known Obama since they both taught at the law school.

Professor CASS SUNSTEIN (School of Law, University of Chicago): The headline is that he's a constitutional law specialist, and he knows the debates and a lot of the people very well. We haven't had that kind of person in the White House in a long, long time.

TOTENBERG: Perhaps not since the early days of the republic, Sunstein says. Former Bush Associate White House Counsel Brad Berenson, who nearly 20 years ago worked with Obama as an editor at the Harvard Law Review, does not share Obama's politics but has enormous respect for him and recognizes that the Democrat is far more knowledgeable than McCain about the courts.

Mr. BRAD BERENSON (Former Associate White House Counsel): Barack Obama has thought far more about courts and constitutional issues than John McCain has, and that may mean that a President Obama takes more personal interest and more of a personal hand in his judicial appointments than a President McCain would.

TOTENBERG: Berenson believes Obama would lean considerably more left than President Clinton did in his appointments to the court, in part because, with a firm Democratic majority in the Senate, Obama would have a freer hand. A President McCain, he says, would face a dilemma.

Mr. BERENSON: I think a President McCain would find himself in a very difficult spot because the Republican base would not accept anyone who was not genuinely and authentically conservative from a judicial point of view, and an overwhelmingly Democratic Senate might not be willing to confirm such a person.

TOTENBERG: Most court observers agree about one thing, the next nominee is likely to be a woman. The names mentioned most often as possible Obama appointments tend to the center left. They include federal Judge Sonia Sotomayor, who has the additional plus of being Hispanic, Harvard Law School Dean Elena Kagan, Michigan Governor Jennifer Granholm, and some commentators have talked about Hillary Clinton, though a Clinton nomination is widely seen as too political for the supposedly apolitical court.

For McCain, there is a hunt on for either a stealth candidate without too much of a record and/or someone with enormous public presence - someone conservative enough to win GOP base backing and yet able to sell herself to the Senate. Republicans concede that finding a woman who fits all of this bill would be tough. There are a number of impressive conservative women judges and lawyers, but perhaps not conservative enough for the GOP base. So in the end, the most often mentioned prospects are not women, but men, like former Solicitor General Paul Clement, Judge Jeffrey Sutton, or Judge Michael McConnell. A heavily Democratic Senate, however, might balk at any of these conservatives, too. Nina Totenberg, NPR News, Washington.

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