Supreme Court Justice David Souter’s planned retirement touches off a fierce fight between the parties that could reinvigorate moping Republicans and, depending on his choice, enhance or tarnish President Barack Obama’s bipartisan image.
Within hours of Thursday night’s leak about Souter’s plans, Republicans were circulating claims that potential nominees were “liberal” and “activist,” and pointing reporters to comments that Obama and Vice President Joe Biden had made about the confirmation process when they were in the Senate.
Souter, 69, is squarely in the court’s liberal branch, even though he was appointed by President George H.W. Bush, so the retirement is unlikely to result in any deep shift in the balance of power.
The White House had thought that Justice Ruth Bader Ginsburg, 76, might be the first vacancy Obama would have a chance to fill, and the unofficial lists of potential nominees are topped by women.
White House Counsel Gregory Craig will play the lead role in the selection process. Biden presided over six confirmation hearing when he was Judiciary Committee chairman, five of them for current justices.
The president faces competing imperatives in replacing Souter, including the pressure to appoint the first Hispanic to the Supreme Court and his own ties to prominent legal academics beginning with his years at Harvard Law School.
At the top of the most-mentioned lists are federal Judge Sonia Sotomayor of New York, who is both female and Hispanic; Elena Kagan, Obama's solicitor general, who may not have been in the job log enough to go to the Court, and Diane Wood, a judge on the Chicago-based U.S. Court of Appeals for the Seventh Circuit who worked in the Justice Department under both Presidents Ronald Reagan and Bill Clinton. Also mentioned: Michigan Gov. Jennifer Granholm (D).
Conservatives fired warning shots of the possible battle to come. Wendy Long of the Virginia-based Judicial Confirmation Network, a former clerk to Justice Clarence Thomas, said in a statement: “The current Supreme Court is a liberal, judicial activist court. … If Obama holds to his campaign promise to appoint a Justice who rules based on her own ‘deepest values’ and what's in her own ‘heart’ – instead of what is in the Constitution and laws — he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.”
Despite the rhetoric from the other side, Obama should have wide latitude is picking who he wants to replace Souter. The recent switch of Sen. Arlen Specter from Republican to Democrat could account for a filibuster-proof 60-vote majority, should Minnesota’s Al Franken be seated as expected.
And Democrats say Obama could get three or even four Supreme Court picks, enough to invigorate and deepen the liberal wing on the court for years to come, with the possible retirements of John Paul Stevens, Anthony Kennedy and Ginsburg.
One New Hampshire friend of Souter’s told POLITICO that the justice made it clear last summer when he was home in between sessions that if Obama won he wanted to be the first to retire. Souter is thought to miss the quiet life in the tight-knit Granite State after nearly 19 years on the court in Washington.
During his campaign for the White House, Obama suggested he'd take personal considerations into account in selecting judges.
"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges," he told a Planned Parenthood conference in 2007.
The top candidate, on paper, is Sotomayor, 54, a Clinton appointee to the Second Circuit Court of Appeas. She meets the empathy criteria, having grown up poor in the South Bronx, as well as Obama's preference for sterling credentials, having graduated from Yale Law School.
Even before Souter’s retirement was formally announced, some in the GOP already say they’re gearing up for a fight with Obama over his nominee, particularly if he picks Sotomayor. “The GOP obviously does not have much power in D.C. these days, but just like we helped ourselves by opposing the deficit-busting stimulus, opposing left-wing nominees like her is our path back to the majority,” one Republican source said.
Others possible contenders for Obama include:
—Kagan, 49, formerly dean of Harvard Law School. She served as deputy domestic policy adviser in President Clinton’s White House. Clinton nominated her to the D.C. Circuit in 1999 but she never got a hearing. Considered liberal, but perhaps not as liberal as others. Made a point to reach out to conservatives while at Harvard.
—. Wood, 58, was also an associate dean at University of Chicago Law School. Considered a moderate.
—Kathleen Sullivan, 53, a professor and former dean at Stanford Law School. A Constitutional law expert, she has argued several cases before the Supreme Court and formerly taught at Harvard Law. Considered a liberal.
—Harold Koh, 54, dean of Yale Law School. He is currently Obama’s nominee to be the chief legal adviser at the State Department, but his nomination has encountered heavy opposition from Republicans. Also considered a liberal pick.
—Cass Sunstein, 54, an Obama friend from the University of Chicago Law School and Obama’s nominee to run the White House Office of Information and Regulatory Affairs. He once clerked for Supreme Court Justice Thurgood Marshall. Considered a moderate.
-- Ann Williams, 59, sits on the U.S. Court of Appeals for the Seventh Circuit. An African-American woman, she could be tough for Republicans to oppose because she was first appointed as a federal district court judge in 1985 by Reagan. Clinton elevated her to the appeals court. Considered a moderate.
Last month, a senior administration official involved in the nomination process signaled that the life experience of potential nominees would figure heavily in Obama's decisions about whom to propose for the highest court.
"The same principles apply in terms of looking for people with the highest professional competence and personal and professional excellence. We're looking for diversity again, not only just in gender and ethnicity, but also in experience in the law and in life," said the official, who asked not to be named. "The president has made clear that he's looking for judges, and I think this is true for justices, who have the ability or the experience to understand the plight of real people who are in the courts."
Ben Smith, Jonathan Martin and Carol E. Lee contributed to this report.