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Monday, Jul 6, 2009
With as many as three justices expected to retire, Obama may have the opportunity to reshape the conservative-leaning court. Our experts eye the candidates.
Editor's note: Salon originally published this article about potential Obama Supreme Court picks just weeks after his election as president. Since that time, several of the individuals named as possible justices have been tapped for jobs in the Obama administration. Cass Sunstein, who was both one of the sources consulted about Supreme Court candidates and one of the candidates named, was chosen to head the Office of Information and Regulatory Affairs. Elena Kagan was chosen as Solicitor General. Harold Koh has been nominated to be the State Department's top lawyer.
By Justin Jouvenal
Read more: George W. Bush, Politics, Supreme Court, News, Barack Obama, 2008 election, John Roberts
Salon composite
From left: Sonia Sotomayor, Deval Patrick, Cass Sunstein and Jennifer Granholm
Nov. 19, 2008 | 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."
Salon's panel:
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.
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