Obama Reacts To Retirement Of Justice Souter, Describes Plans For Nominee Selection

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Article Date: 05 May 2009 - 3:00 PDT

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President Obama last week during a briefing to discuss Supreme Court Justice David Souter's plans to retire at the end of the court's term in June said that he intends to look for a replacement who understands "how our laws affect the daily realities of people's lives," the New York Times reports. Obama said he "will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook." Although some conservative observers contend that these statements indicate Obama will select an activist judge with a broad view of the Constitution, Obama said his nominee would be someone "who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role" (Nagourney/Zeleny, New York Times, 5/2).

Speculation Over Potential Nominees

Many observers expect Obama to select a woman to fill Souter's seat, as the only woman currently serving on the court is Justice Ruth Bader Ginsburg. According to the New York Times, more than 200 women currently serve on federal district and appeals courts -- representing about 25% of each bench -- which is a "vastly altered scene" from previous administrations in which ranking female judges were "scarce." In addition, there are more than 100 female judges on top state courts, and a third of state chief justices are women, the Times reports. Roberta Liebenberg, a Philadelphia attorney and head of the Commission on Women in the Profession at the American Bar Association, said, "We think it's incredibly timely and important that the president replace Justice Souter with a woman, and hopefully more women to come, so that the court will be representative of women in the profession." Nan Aron, president of the Alliance for Justice, added, "There are so many more women in the legal profession and on the bench throughout the country, and it's imperative to have greater gender representation on all of our courts, including the Supreme Court." According to the Times, some possible Obama nominees include federal appeals court judges Sonia Sotomayor, Kim Wardlaw and Diane Wood; Solicitor General Elena Kagan and constitutional law professor Kathleen Sullivan. In addition, Obama could select a nominee from outside of the court system, such as Michigan Gov. Jennifer Granholm (D), one of seven current female governors. Curt Levey, executive director of the conservative group Committee for Justice, said he and his colleagues are convinced Obama will nominate a woman to the Supreme Court and have focused their opposition research efforts on 17 possible female candidates (Savage, New York Times, 5/2).

In appearances on television news shows on Sunday, Senate Judiciary Committee Chair Sen. Pat Leahy (D-Vt.) and former committee chair Sen. Arlen Specter (D-Pa.) called for Obama to look beyond the courts in selecting a replacement for Souter. Leahy, appearing on ABC's "This Week," said he would "like to see more people from outside the judicial monastery -- somebody who's had some real-life experience, not just as a judge." On NBC's "Meet the Press," Specter said that he hoped Obama "would look beyond the circuit courts of appeals, which now populate the Supreme Court, and pick someone with greater world experience and diversity." He continued that the current justices, who were primarily promoted from the circuit courts, "have lives and experiences which are all very similar, and we live in a very diverse country with a lot of different interests." Specter said he hoped Obama would consider diversity when selecting a nominee, adding, "Women are underrepresented on the court. We don't have a Hispanic. African-Americans are underrepresented." Specter also discussed the issue on CBS' "Face the Nation" (Allen, Politico, 5/3).

Conservatives, Liberals Gear Up For Confirmation Battle

According to the Times, the process of nominating Souter's replacement is likely to test Obama's "success at skirting divisive social issues," while both liberal and conservative leaders prepare "for another of the intense battles over Supreme Court appointments that have marked the past 20 years in Washington" (Nagourney/Zeleny, New York Times, 5/2). In addition, although Obama has "tried to hold off debate on contentious social issues such as abortion," his nomination of Souter's replacement "could pump new oxygen into national debates over abortion" and other issues, the AP/Minneapolis Star Tribune reports. According to the AP/Star Tribune, some liberals have criticized Obama's efforts to "push several of these social issues to the political background," such as when he stated last week that the Freedom of Choice Act, which would codify Roe v. Wade, is not the "highest legislative priority." The Supreme Court confirmation process could propel liberal advocates to lobby for a candidate who supports their views on issues such as abortion, the AP/Star Tribune reports (Babington, AP/Minneapolis Star Tribune, 5/1).

Meanwhile, Republican leaders are preparing "for what they see as an inevitable fight" to counter Obama's nominee to replace Souter, Roll Call reports. GOP leaders last week said they already are assembling a core group of Senate Judiciary Committee aides to determine a process for vetting Obama's nominee and communicating Republicans' concerns. Republicans also are planning to work with outside advocacy groups, such as the conservative Judicial Confirmation Network. Wendy Long, counsel to the network, said advocates last week participated in a conference call and are planning to coordinate on "batting down some of his most extreme candidates" before Obama makes a selection. In addition, Long said advocates might use votes on the president's Supreme Court nominee as a litmus test for whether to support Senators facing re-election (Stanton, Roll Call, 5/4).

Nancy Keenan, president of NARAL Pro-Choice America, said she expects antiabortion-rights advocates to mount opposition efforts to Obama's Supreme Court nominee. "Without a doubt, opponents of women's freedom and privacy will use a vacancy on the court as an opportunity to further their attacks on nominees" who support abortion rights, she said. According to the Los Angeles Times, conservatives already have "brought the most explosive weapon in their arsenal -- the issue of abortion rights -- to bear against" the confirmation of many of Obama's nominees, "offering a likely preview of what to expect" following Obama's selection of Souter's replacement. Antiabortion-rights advocates opposed the confirmation of HHS Secretary Kathleen Sebelius, and are continuing efforts to stall the nomination process for Dawn Johnsen, Obama's nominee to head the Justice Department's Office of Legal Counsel. Marjorie Dannenfelser, president of the antiabortion-rights group Susan B. Anthony List, said that the outcome of Johnsen's nomination "holds significant implications for our next Supreme Court battle" (Oliphant, Los Angeles Times, 5/3).

Additional Coverage

NPR's "All Things Considered" on Friday examined how Souter's rulings on the court have differed from conservatives' expectations of him when he was nominated by former President George H.W. Bush in 1990 (Totenberg, "All Things Considered," NPR, 5/1). NPR's "Weekend Edition Sunday" included a discussion with NPR legal affairs correspondent Nina Totenberg about potential nominees and the impact of the Supreme Court vacancy (Neary, "Weekend Edition Sunday," NPR, 5/3). In addition, NPR's "Morning Edition" on Monday included a discussion with NPR political analyst Cokie Roberts about the type of nominee Obama might select to replace Souter (Inskeep, "Morning Edition," NPR, 5/4).

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