Smooth path seen on way to high court
With Democrats' majority, Obama is likely to get the justice he wants. Talk centers on women.
WASHINGTON - President Obama's Supreme Court pick - the first by a Democratic president in 15 years - is likely to face a smooth path to confirmation, although it also gives liberals and conservatives alike a fresh reason to mobilize.
Associate Justice David H. Souter, 69, told Obama yesterday in a four-line letter that he will retire from the court this summer. After a midafternoon 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 Law 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," said Goodwin Liu, a former Supreme Court clerk now teaching at the University of California at Berkeley's Boalt Hall Law School.
"Another female justice would be a good idea," Pennsylvania Sen. Arlen Specter said at a news conference at 30th Street Station yesterday. "Given the proportions of women in our society and on the court, they are underrepresented."
Still, Specter, who shifted from the Republican Party to the Democrats this week, said he had "never placed a litmus test" on court nominees.
The current court has one African American justice, Clarence Thomas. There has never been a Hispanic on the Supreme Court.
Obama's stated emphasis on "a quality of empathy" raised 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, including Ginsburg, over age 70, the administration has been preparing for months for an anticipated vacancy. In December, Obama suggested names of potential nominees to his transition team.
Staff members in the White House counsel's office have been reviewing the backgrounds 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 have 11 Democrats and eight Republicans. Veteran conservatives Orrin G. Hatch (R., Utah) and Charles E. Grassley (R., Iowa) are the most senior members, and both have reputations of working with Democrats. Hatch once made known his interest in serving on the court.
The committee, though, also includes less conciliatory Republican members such as Tom Coburn of Oklahoma and John Cornyn of Texas, who heads the party's national Senate reelection committee and has raised objections to some of Obama's cabinet nominees.
In addition to the Democrats' numeric advantage, history will be on the Obama nominee's side. Senators are often reluctant to reject a president's choice simply because they disagree. Ginsburg, for instance, was a veteran women's-rights advocate and supported by liberals, but was confirmed in 1993 by a 96-3 vote.
"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 George W. Bush who once clerked for Justice Anthony M. Kennedy.