Obama likely to get nominee he wants for Supreme Court

McClatchy NewspapersMay 1, 2009 

WASHINGTON — President Barack Obama's Supreme Court pick — the first by a Democratic president in 15 years — is likely to have a smooth path to confirmation, although it also gives both liberals and conservatives a fresh reason to mobilize.

Associate Justice David Souter told Obama Friday in a four-line letter that he'll retire from the court this summer. Following a mid-afternoon telephone conversation between the two men, Obama said he hoped to have a successor in place when the Supreme Court convenes for arguments in October.

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

The immediate focus has turned to a potential female candidate since Justice Ruth Bader Ginsburg, who recently underwent cancer surgery, is the only woman on the nine-member court.

The most frequently mentioned names in legal circles include appellate judges Sonia Sotomayor, a 54-year-old Yale School graduate of Puerto Rican descent; Ann Williams, a 59-year-old Notre Dame Law School graduate of African-American descent and Solicitor General Elena Kagan, the 49-year-old former dean of Harvard Law School.

"There's a lot of pressure to name a woman," noted Goodwin Liu, a former Supreme Court clerk now teaching at the University of California's Berkeley Law School.

Obama's stated emphasis on "a quality of empathy," for instance, raises the possibility of bringing in an experienced political figure, such as Michigan Gov. Jennifer Granholm, a 50-year-old Harvard Law School graduate. Sandra Day O'Connor, a former Arizona state senator, was the last Supreme Court justice to have elected experience.

With five justices over age 70, including Ginsburg, the administration has been preparing for months for an anticipated vacancy. In December, Obama personally suggested names of potential nominees to his transition team.

Staff members in the White House counsel's office have been reviewing background of possible choices, and senior staff met Thursday, before the news about Souter broke, to discuss choices.

This much seems clear: In a Senate where Democrats control 59 seats, and could soon add a 60th once the contested Minnesota race is decided, Obama appears likely to have little trouble getting the nominee he wants.

"The average voter looks and says, 'is this person qualified?' If he or she is, and doesn't appear crazy, they think they should be confirmed," said Thomas Keck, professor of constitutional law and politics at Syracuse University.

The Senate Judiciary Committee, which will conduct hearings and take the first vote on the nominee, is expected to include 11 Democrats and eight Republicans. Veteran conservatives Orrin Hatch, R-Utah, and Charles Grassley, R-Iowa, are the most senior members, and both have reputations of working with Democrats. Hatch himself once made known his own interest in serving on the court.

The committee, though, also includes less conciliatory GOP members Tom Coburn, R-Okla., and John Cornyn, R-Texas, who heads the party's national Senate re-election committee and has raised objections to some of Obama's Cabinet nominees.

In addition to the Democrats' numeric advantage, the Obama nominee also has history on her side. Senators are reluctant to reject a president's choice simply because they disagree. Ginsburg, for instance, was a veteran women's rights advocate and a darling of liberals but was confirmed in 1993 by a 96-3 vote. And despite many Democrats' misgivings about Chief Justice John Roberts in 2005, he was confirmed by a vote of 78-22.

"It's safe to say that the president is in the position to get a mainstream liberal confirmed to the court fairly easily," said Bradford Berenson, a former associate White House counsel to Bush who once clerked for Justice Anthony Kennedy.

Nan Aron, the president of the liberal Alliance for Justice, nonetheless predicted that Republicans and conservative activists would "attack whoever the president nominates. This is one of the most valuable tools they have to galvanize their base."

Republican media strategist Keith Appell agreed the nomination can be "an issue in Senate elections next year," a reminder to conservative voters that two more years of a big Democratic majority could mean a court packed with liberals, although Souter's successor isn't likely to change the current balance of the court.

"This can become a great opportunity for conservatives and Republicans to rally together," Appell said.

Liberal advocacy groups, too, typically use Supreme Court nominations as a way to excite members, unify core supporters and, on occasion, fundraise. The sense of imminent threat is often deployed.

"Without a doubt, opponents of women's freedom and privacy will use this vacancy on the court as an opportunity to further their attacks on nominees who have taken pro-choice positions," NARAL Pro-Choice America President Nancy Keenan stated Friday, illustratively. "America's pro-choice majority will fight back."

(Margaret Talev contributed to this article.)

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McClatchy Newspapers 2009

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