Obama and Supreme Court nominees

by Jay McDonough

I have no idea what George W. Bush thinks.  But I suspect, when the president is settled comfortably into retirement, he may have some regrets about his presidency; the ill conceived and mismanaged wars, the squandering of international goodwill following 9/11, an economy that went deeply, deeply south, and the resultant damage done to his own political party.  But there's one area that Mr. Bush will undoubtedly feel he was successful; filling vacancies on the Supreme Court with very conservative ideologues that are sure to have lasting impact. The confirmation of Bush nominees, Roberts and Alito (both relatively young men) will influence the Court for many, many years.

The election of Barack Obama now offers him similar opportunities.  He will have the opportunity to nominate, potentially, three new justices before the end of his first term.  John Paul Stevens and Ruth Bader Ginsburg are 88 and 75 years old, respectively.  David Souter has given some hints he may be interested in retirement as well.  Anthony Kennedy has had health issues and is 72 years old (as is Antonin Scalia).

Speculation about what kind of justice Barack Obama may nominate is rampant.  The LA Times ran a piece the other day suggesting the Obama nominated justices will be a good deal more temperate that some might guess.

In an interview with the Detroit Free Press editorial board in October, he described (Earl) Warren, (William) Brennan and (Thurgood) Marshall as "heroes of mine. . . . But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

A Harvard Law School graduate, Obama taught for 12 years at the University of Chicago and led classes on voting rights and equal protection of the law. In the Detroit interview, he praised Justices Breyer and David H. Souter, a Republican appointee, as "very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.

"That's the kind of justice that I'm looking for," he went on. "Somebody who respects the law, doesn't think that they should be making the law, but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice."

Both the Times and a panel of judicial experts put together by Salon suggested some potential nominees for Obama to consider.  The nominees common to both articles:

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.

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.

Diane P. Wood, 58 -- Like (Cass) 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.

One of the most cogent arguments for the election of Obama was to curtail the nominations of conservative ideologues to the Supreme Court and return the Court to some semblance of balance.  The argument never got much play during the runup to the election, but Obama's win does provide the president electthe opportunity to make his own legacy; something, as he's settled comfortably in retirement, he can look back with satisfaction and pride.

Comments

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i had a discussion with a friend of mine who says he knows the politics of the supreme court (i think he does) -- he said ginsburg isnt going anywhere so fast - but feels relieved.

its scalia that is the problem......... a big one

stevens will retire