Federal Courts and Nominations

Where Will Obama Turn For The Next Justice?

It didn’t take President Obama very long to pick Sonia Sotomayor as his nominee to replace Supreme Court Justice David Souter, but he may face the same difficult choice again soon. With Justices Ruth Bader Ginsburg and John Paul Stevens likely approaching the end of their tenures, Obama could end up naming at least two more justices to the high court. What would he be looking for in his second and third nominees?

Court observers predict he will seek out consensus candidates — or at least non-provocative ones. In his selection of Sotomayor, liberal and conservative experts alike say Obama hoped to minimize the political cost of filling the court vacancy. The nomination shows “he has certain issues that are his highest priorities that he knows could be a political challenge,” said Geoffrey Stone, a law professor at the University of Chicago. “This selection of the Supreme Court justice isn’t one in which he wants to expend any of that capital.”

Should another vacancy open up in the near future, with Obama busy tackling issues like health care and the economy, he would be unlikely to nominate a crusading liberal justice in the mold of William Brennan or Thurgood Marshall despite calls from the left, Stone said. If retirements come later in his first term, or if he wins a second, the White House would have a firmer footing to try and push a bolder liberal voice through Congress.

Even if Obama seeks to nominate noncontroversial justices further down the line, he’ll have plenty of outside expectations to balance. Should the 76-year-old Ginsburg retire, for example, Obama will almost certainly face the same pressure to appoint a woman that he did this time around. After all, he would be back at square one, with only one woman — Sotomayor, if she’s confirmed — on the high court.

That fact has not gone unnoticed by the White House. Just days after Sotomayor’s nomination, David Axelrod praised the other candidates before a small group of columnists. “It wouldn’t at all surprise me if some of the very same people were back in the Oval Office” should Obama get another chance at a nomination, Axelrod said. The other candidates who had personal interviews with Obama were Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and Judge Diane Wood.

If not a woman, will Obama feel compelled to nominate another minority candidate? Janet Murguia of the National Council of La Raza said she thought Obama would continue to nominate justices who “reflect the makeup of this country.” “It’d be a mistake though,” she cautioned, “to single out one constituency and say that now it’s their turn.” Stone added that Obama is “more concerned with not producing negative reaction at the confirmation hearings than he is with catering to any additional groups at this point.”

While identity politics is unlikely to disappear completely as a factor, the more chances Obama gets to nominate justices, the wider the field of possible appointees becomes. “If Obama gets more than two appointments to the court, people like [appellate Judge] Merrick Garland would get serious attention for the slot,” said Doug Kendall, president of the left-leaning Constitutional Accountability Center. If the 89-year-old Stevens retired after Ginsburg, speculated Princeton provost Christopher Eisgruber, the president would “have a bit freer hand” to appoint a white male such as Cass Sunstein. Sunstein, a law professor and longtime Obama friend, is currently going through the confirmation process to head the White House Office of Information and Regulatory Affairs.

Sotomayor would bring racial diversity to the court, but not professional diversity: She’s a sitting appellate judge, as were all the current justices. “This is a rather conventional pick once you take out the issue of ethnicity and gender,” said Wade Henderson, president of the Leadership Conference on Civil Rights, speaking at a recent American Constitution Society panel discussion. “Having said that, the president was making an effort to depoliticize the judicial selection process.” Henderson expects that when future vacancies arise, nominees outside of the “fraternity and sorority of the Courts of Appeals would bring greater diversity and perspective to the table.”

Former front-runners Kagan and Napolitano, as well as Sunstein, all fit the bill as candidates outside the federal bench, but Napolitano brings political experience, something Obama has suggested he’s looking for in a justice. On the campaign trail, Obama praised former Chief Justice Earl Warren, who served as California governor before his appointment. And when Souter’s retirement announcement was made, he said he would “seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives.”

That quality may be easier to find in a nominee who hasn’t spent a career on the bench. But non-judges can also bring with them political baggage that Obama wouldn’t want to waste his political capital on.

“Confirmation strategy these days is to attack candidates not on grounds that they are too extreme of a liberal [or conservative], but that they’re too political,” said Eisgruber, who recently wrote a book on the confirmation process. “You invite that fight if you pick someone from a political office and not from judicial experience.”

Ed Whelan, president of the Ethics and Public Policy Center, said at the ACS event that it wasn’t unusual for presidents to seek Supreme Court justices from outside the judicial monastery. That hasn’t always produced justices with the longevity and influence of a Warren, he said, pointing to George W. Bush’s botched nomination of White House counsel Harriet Miers. “If you want to make sure someone has the ability to do the work, there is nothing like the Court of Appeals experience to reflect that,” Whelan said.

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