In February 1980, Republican presidential aspirant Ronald Reagan declared that the U.S. Supreme Court needed fresh faces. The court had just declined to block a New York judge’s ruling that the federal government should continue to pay for the abortions of poor women. Reagan called the court’s refusal “an abuse of power as bad as the transgressions of Watergate” and said, “The court needs new justices who respect and reflect the values and morals of the American majority.”
The court’s minor procedural decision is long forgotten, but Reagan was able to realize his ambition to transform the Supreme Court. During his two terms as president, he appointed three new justices — Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy — and elevated William H. Rehnquist to chief justice. Reagan’s picks often strayed from Republican orthodoxy, but he tipped the court in a conservative direction for a generation.
Barack Obama might have as much power to shape a new court as Reagan. Like Reagan, Obama could appoint as many as three justices before Inauguration Day 2013. John Paul Stevens, 88, and Ruth Bader Ginsburg, 75, are of retirement age, and Ginsburg is a colon cancer survivor. David Souter, 69, has reportedly expressed an interest in returning to his home in New Hampshire. (Kennedy, who has twice had minor heart procedures, is 72, as is Scalia.)
So will an Obama presidency usher in a new liberal era on the court? The short answer: probably not (and not just because the president-elect’s apparent choice for attorney general, Eric Holder, is one more sign that he does not fear the taint of Clintonism). Since the justices most likely to retire are from the court’s liberal wing, Obama will have less of an opportunity to tilt the court’s ideological orientation. Currently, the court has a rough balance of power, with four conservative justices, four liberal and a swing vote in Justice Kennedy.
Recent history suggests the paths Obama might follow. President George W. Bush appointed two solidly conservative justices in John Roberts and Samuel A. Alito, which excited his base. President Clinton took a different tack: He appointed two moderate liberals — Ginsburg and Stephen Breyer — in order to avoid a bruising confirmation battle.
“The real question is: Is Obama going to appoint significantly more liberal judges than President Clinton did? or appoint justices that are center-left like Ginsburg and Breyer?” said Thomas Goldstein, head of the Supreme Court practice for the law firm Akin Gump Strauss Hauer & Feld.
Obama has not tipped his hand in this regard, but the Senate’s second-most-powerful Republican, John Kyl of Arizona, promised earlier this month to filibuster any Supreme Court nominee that Republicans deem too liberal. (Of course, that assumes Democrats won’t reach a filibuster-proof 60-seat majority in the Senate. Currently, they have 57 votes, but the final outcomes of three close elections remain up in the air.) Obama may also want to avoid confirmation fights to preserve his political capital for the many other pressing issues on his agenda, from healthcare to global warming.
The president-elect has given a few hints about what he is looking for in a justice. Not surprisingly, he opposed George W. Bush’s nomination of Roberts and Alito to the nation’s highest court. Obama has praised former Chief Justice Earl Warren, who was instrumental in ending school segregation in Brown v. Board of Education, and current moderate to liberal justices such as Breyer and Souter. Last year, Obama spoke before a Planned Parenthood conference about his judicial philosophy.
“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom,” Obama said. “The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criterion by which I’m going to be selecting my judges.”
Salon talked with a handful of attorneys and legal scholars to get a sense of who might be nominated to fill a vacancy on the Supreme Court. A couple of common themes emerged: Many felt that Obama would be inclined to appoint a woman or a minority to increase the diversity of the court and that he was likely to select a younger nominee to balance out the appointments of conservatives Alito and Roberts, who are 58 and 53, respectively.
Obama will probably take an extraordinary role in the selection process, given his background as a constitutional law scholar, said panelist Cass Sunstein, a University of Chicago law professor and an informal Obama advisor.
“He would be involved in this in as personal a way as any president could be,” Sunstein said. “This is something he knows.”
Thomas Goldstein, head of the Supreme Court practice for Akin Gump Strauss Hauer & Feld
David Yalof, associate professor of political science at the University of Connecticut
Cass Sunstein, University of Chicago law professor and Obama advisor
Charles Ogletree, Harvard Law School professor and Obama advisor
Lucas A. Powe Jr., Supreme Court historian at the University of Texas School of Law
Robert A. Levy, chair of the Cato Institute
(Sunstein and Ogletree spoke about the characteristics that Obama might seek in a potential Supreme Court nominee, but they declined to provide the names of any individuals Obama might pick, since they advised his campaign.)
Sonia Sotomayor, 54 — After growing up in a Bronx housing project, Sotomayor has risen to become a judge on one of the most powerful courts in the land: the U.S. Court of Appeals for the 2nd Circuit. As a Hispanic woman, Sotomayor would make an attractive candidate if Obama is looking to diversify the court. There has never been a Hispanic on the Supreme Court, and there is only one woman currently on the bench, Ruth Bader Ginsburg. Sotomayor might also have bipartisan appeal. She is politically moderate, and President George H.W. Bush appointed her to her first judgeship.
Deval Patrick, 52 — As the first African-American governor of Massachusetts and a friend of Barack Obama’s, Patrick is often mentioned as a potential Supreme Court nominee. Patrick would bring something that is in short supply on the court: executive experience. But he would also bring a major risk: He has never served in the judiciary. Despite that gap in his résumé, he has some background in the law. Before he was governor, Patrick was a lawyer and President Clinton appointed him the assistant attorney general for civil rights in 1994 — the nation’s highest civil rights position. Patrick is solidly liberal and supports a number of positions, such as same-sex marriage, that could make him a target for Republicans during the confirmation process.
Elena Kagan, 48 — Few names have been floated as often as a potential Obama nominee as Kagan, the dean of the Harvard Law School — Obama’s alma mater. Like Obama, she also taught at the University of Chicago. Kagan served in Clinton’s White House as an associate counsel and domestic policy advisor. Clinton nominated her for a position on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, but Republicans stalled her approval. Kagan clerked for Supreme Court Justice Thurgood Marshall.
Merrick Garland, 56 — President Clinton appointed Garland to the U.S. Court of Appeals for the District of Columbia Circuit in 1997. Garland also served in the Department of Justice during the Clinton administration; as an associate deputy attorney general he oversaw the Oklahoma City bombing and Unabomber cases. Garland was a clerk for Supreme Court Justice William J. Brennan Jr. This impressive résumé makes him one of the most experienced of Obama’s potential nominees. Recently, Garland joined two other judges in throwing out the Bush administration’s “enemy combatant” designation for a Chinese Muslim held at Guantánamo Bay. He is considered politically moderate.
Cass Sunstein, 54 — A preeminent and prolific law scholar and an advisor to Obama’s presidential campaign, Sunstein was a colleague of Obama’s at the University of Chicago and now teaches at Harvard Law School. Sunstein has decried the Supreme Court’s more conservative justices, including Antonin Scalia and Clarence Thomas. He calls them judicial fundamentalists who have advocated “earthquake-like” changes in the law. Sunstein argues for a minimalist approach to jurisprudence. He believes justices’ decisions should be narrowly tailored to the case at hand and should lean heavily on precedent. Sunstein has said minimalists believe “the Supreme Court is not our national policy maker.”
Diane P. Wood, 58 — Like Sunstein, Wood is a distinguished law academic. President Clinton nominated Wood to the U.S. Court of Appeals for the 7th Circuit in 1995 after she worked in his Department of Justice. She is also a senior lecturer at the University of Chicago Law School and was also a lawyer in private practice. She started her law career as a clerk for Supreme Court Justice Harry Blackmun. She is considered somewhat liberal.
Jennifer Granholm, 49 — The governor of Michigan and that state’s former attorney general, Granholm has many of the strengths and weaknesses that Deval Patrick has. She would bring executive experience, but she has also never served in the judiciary. Granholm backed Hillary Clinton during the Democratic presidential primary, but she stumped for Obama during the general election and is serving on his economic transition team. She also stood in for Sarah Palin during Joe Biden’s preparation for the vice-presidential debate.
Leah Ward Sears, 53 — She is the first woman to serve as chief justice of the Georgia Supreme Court, but that is hardly Sears’ only trailblazing achievement. She was the first woman and the youngest person ever to serve on the court when Gov. Zell Miller appointed her in 1992. She was also the first African-American to serve on a Georgia superior court. Sears, like Sotomayor, will present an attractive pick for Obama if he looks to increase the diversity of the U.S. Supreme Court. Sears plans to step down from the Georgia Supreme Court in June 2009. She describes herself as a moderate, but she has often been targeted by Georgia’s conservatives.
Harold Hongju Koh, 53 — The dean of Yale Law School is a Korean-American and an expert on international law and human rights. From 1998 to 2001, he served as assistant secretary of state for democracy, human rights and labor under President Clinton. He also worked in the Department of Justice. Koh is considered a staunch liberal. He has been an outspoken critic of the Bush administration and former Attorney General Alberto Gonzales. He said in an interview with the Yale newspaper that gay rights are especially important to him. Koh also served as a law clerk for Supreme Court Justice Harry Blackmun.
Ruben Castillo, 54 — A United States District Court judge in Chicago, Castillo was appointed by President Clinton in 1994. The judge is the son of a Mexican immigrant father and a Puerto Rican mother, and he was the first member of his family to graduate from college. After starting his career in private practice, Castillo became an assistant U.S. attorney in Chicago. During one of Castillo’s prosecutions, a drug kingpin took out a contract on his life, and Castillo and his family had to be placed in police protective custody. Castillo also served as the director of the Mexican American Legal Defense and Education Fund.