Court opening presents choice for Obama

Supreme Court Justice David Souter’s impending retirement gives President Obama an opportunity to put an early stamp on how he will approach judicial nominations.

The question is whether he’ll make his first pick a liberal justice who could set off a battle in Congress, or whether he’ll select a safe, more middle-of-the-road nominee to avoid the possibility of a difficult confirmation.

{mosads}Given that Souter’s retirement comes so early in his term, Obama can feel reasonably assured this will not be his last appointment. That might be an argument for selecting a centrist with the first pick, said Nathaniel Persily, a Columbia Law School professor and Supreme Court watcher.

“He’s going to have more than one Supreme Court pick, so in terms of whether he’s going to pick a true liberal or not, he may want to bide his time,” Persily said.

Then again, Obama may soon have 60 Democratic votes in the Senate. That could lead him to decide to take his shot at appointing a liberal now, before midterm elections give Republicans a chance to pick up seats.

The nation’s first African-American president will have other factors to weigh as well. Some will want Obama to consider gender, since the court now has only one woman. Others will look for Obama to select the first Hispanic justice.

“Age and other demographic characteristics are always a factor,” Persily said. “There’s a certain age cohort that he’s looking at, and that’s pretty key because this is a lifetime appointment and he wants his legacy to be long.”

White House press secretary Robert Gibbs said President Obama has been reviewing a list of potential candidates to fill an opening on the Supreme Court since his election. Obama will reach out to a wide range of people and across party lines to fill the open slot if Souter retires, Gibbs said.

Obama could turn to Harold Koh, the dean of Yale Law School and a former assistant secretary of state under President Clinton. Last month, Obama tapped Koh to serve as a legal adviser to the State Department. Koh clerked for former Justice Harry Blackmun and has been accused of shifting Yale Law School to the left.

Koh’s appointment to the State Department post generated outrage on the right, though top Republican lawyers like Ted Olson and Ken Starr came to his defense. If Obama taps him, Koh would become the first Asian-American justice on the Court.

Another scholar widely rumored to be a future Supreme Court pick, Elena Kagan, left her position as dean of Harvard Law School to become solicitor general, a post sometimes called the 10th Supreme Court justice. She was confirmed last month to be solicitor general, which serves as the government’s top lawyer, by a 61-31 margin. Seven Republicans, including Judiciary Committee members Orrin Hatch (Utah), Jon Kyl (Ariz.) and Tom Coburn (Okla.), supported her.

If Kagan is nominated, Republicans would likely make an issue of her refusal to allow military recruiters on Harvard’s campus. While it’s a longstanding Harvard policy, Kagan also once signed an amicus brief to the court that challenged the Solomon Amendment, which requires schools that receive federal funding to allow recruiters on campus.

Three federal judges could also find themselves on Obama’s shortlist, and both would likely enrage conservatives.

Diane Pamela Wood, a Court of Appeals judge out of the 7th Circuit in Chicago and former deputy assistant attorney general under President Clinton, is one oft-mentioned nominee who won unanimous Senate approval when Clinton appointed her to a judgeship in 1995. Like Koh, Wood clerked for Harry Blackmun, and spent more than a decade teaching at the University of Chicago Law School, where she and Obama overlapped as instructors.

Obama has already tapped a few more centrist judges for promotion, and he could appeal to bipartisanship by picking 2nd Circuit Appeals Court Judge Sonia Sotomayor. Appointed to the U.S. District Court in 1991 by President George H.W. Bush, Sotomayor was given a bump up to the appeals court by President Clinton. Sotomayor was floated by a group of Democratic senators as a possible replacement for Sandra Day O’Connor, a seat that eventually went to Justice Samuel Alito.

Sotomayor already has two prominent backers. Sens. Charles Schumer (D-N.Y.) and Kirsten Gillibrand (D-N.Y.) wrote Obama a letter earlier this month suggesting that Sotomayor or Interior Secretary Ken Salazar be tapped as the nation’s first Hispanic Supreme Court justice.

Finally, Obama could pick Richard Posner, a nominee even conservative sources said would face little opposition before the Senate. A 7th Circuit Appeals Court judge, Posner is widely recognized as a top legal mind. He has written several decisions upholding abortion rights and is a leading scholar in fusing law and economics.

Should Obama want to avoid a tough confirmation, the president could turn to one of several advisers as a nominee.

One name floated is Secretary of State Hillary Rodham Clinton, an attorney who might be seen as filling a void left by O’Connor, who was known for considering the modern political implications of court decisions.

Close Obama adviser Cass Sunstein is another possibility. A Harvard Law professor who taught with Obama at the University of Chicago, Sunstein is head of the White House Office of Information and Regulatory Affairs.

Sunstein, who is married to former Obama adviser Samantha Power, is widely seen as a judicial liberal, though one who favors a narrow focus on specific cases rather than broad, sweeping legal pronouncements. He backed Chief Justice John Roberts’s appointment, along with other controversial Bush administration nominees.

Legal watchers have also floated Massachusetts Gov. Deval Patrick (D) and Michigan Gov. Jennifer Granholm (D) as potential appointees, should Obama decide to tap a politician for the job. Both Patrick and Granholm have legal experience, Patrick as a former assistant attorney general under President Clinton and Granholm as an assistant U.S. attorney and later as Michigan’s attorney general.