Obama weighs Supreme Court options

What happened

President Obama will soon get his first chance to put his stamp on the nation’s highest court, as Supreme Court Justice David Souter last week announced that he would retire in June. Obama said he would seek a nominee with “empathy” who understands that justice “isn’t about some abstract legal theory,” but also involves “how our laws affect the daily realities of people’s lives.” Insiders said Obama would probably name a female candidate to the court, where 76-year-old Ruth Bader Ginsburg is currently the sole woman. His short list reportedly includes federal appellate judges Sonia Sotomayor and Diane Wood, Solicitor General Elana Kagan, and Michigan Gov. Jennifer Granholm.

Republicans reacted with alarm over Obama’s call for a justice with “empathy,” with Republican Sen. Orrin Hatch calling it “a code word for an activist judge.” To replace defector Arlen Specter, Senate Republicans named Jeff Sessions of Alabama to the party’s top position on the Judiciary Committee, which will review and vote on Obama’s appointment. Sessions, an unflinching conservative, promised a thorough examination of Obama’s nominee. “A minority party has a responsibility to establish and answer questions that might be out there,” he said.

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What the editorials said

For years, conservatives have made “No more Souters!” a rallying cry, said The New York Times. When the first President Bush appointed him, in 1990, Souter was an obscure judge with a thin record. Conservatives embraced him as a “stealth candidate,” while liberals panicked. But Souter surprised everyone, becoming an independent-minded defender of abortion, minority rights, and civil liberties. Another justice with Souter’s “character, intellectual rigor, and commitment to core constitutional values” is exactly what Obama should look for.

For liberals like Obama, “empathy” means conferring advantages upon “single mothers, gays,” and others deemed to deserve special treatment, said National Review Online. You can be sure “he is not looking for someone with empathy for small-business owners.” Under George W. Bush, Republicans argued that the Senate should defer to the president when evaluating nominees. “This political norm made sense in an era when judges stayed within their constitutional authority.” Republicans owe it to the nation, and to themselves, to use the nominating hearings to expose judicial activism for what it is—“a slow-motion coup.”

What the columnists said

Obama doesn’t need another Souter; he needs a liberal John Roberts or Samuel Alito, said Jeffrey Rosen in The New York Times. Souter was an admirable man, but he was academic and dull, whereas George W. Bush’s appointments have been articulate advocates for a defined judicial worldview. Obama needn’t pick a candidate as far to the left as Roberts and Alito are to the right, but he should find one who can be as persuasive and influential as they are. To ensure his legacy on the court, Obama’s “focus should be on the candidate with the clearest and most galvanizing judicial philosophy.”

That’s just one reason Sonia Sotomayor should be at the top of the list, said Joe Conason in Salon.com. A Puerto Rican from the South Bronx who was raised by a single mother, Sotomayor would be the first Hispanic justice. Republicans must be afraid of her because they’ve already launched a smear campaign, based partly on her supposedly “extreme views on affirmative action.” Obama should welcome a fight with GOP senators over Sotomayor, because it will reveal them as narrow-minded, backward extremists.

Picking a fight is the last thing Obama should do, said Dan Balz in The Washington Post. Americans elected him because of his “call to bring the country together, to diminish polarization, to dampen rampant partisanship.” Supreme Court confirmation battles have become the epitome of everything Obama promised to change. As a senator he pleaded with Bush to consult Democrats when choosing his nominees, and he chastised liberal interest groups for poisoning healthy debate with extreme claims about the candidates. Now is his chance to get it right.

What next?

This won’t be Obama’s last opportunity to nominate a Supreme Court justice, said Alex Kinsgbury in U.S. News & World Report. Ginsburg is being treated for pancreatic cancer and John Paul Stevens is 88 years old. Both are rumored to be considering retirement. But like Souter, they are reliable liberal voters. Obama can’t dramatically change the makeup of the court unless something truly unexpected happens.