Obama's court pick to be shaped by his experience

May 12, 2009 2:46:37 PM PDT
President Barack Obama wants a Supreme Court nominee who is not only schooled in the law but passionate about how it affects people's lives, a scholar willing to decide a case from the heart when the constitutional answer is elusive. In many ways, he is in pursuit of someone like himself.

Obama's background -- community organizer in Chicago, president of the Harvard Law Review, instructor of constitutional law, member of the Senate during two Supreme Court confirmations -- is driving his thinking about whom he will pick. He is not just setting the tone; he is engaged in the search.

"I don't think you'll see, in picking a Supreme Court nominee, that the president is going to look for a recommendation and agree or disagree with that," White House press secretary Robert Gibbs said in an interview about Obama's deliberations. "You have a president who understands and has studied many of these issues -- even taught them. This is a process that will be decided ultimately by him."

Obama is deciding among a small group of candidates to replace Justice David Souter, who is retiring next month. The White House is not confirming any names but cautioning that no media organization has reported every person under serious review.

What's known is that Obama is likely to choose a female candidate for a nine-member court that has just one woman, Ruth Bader Ginsburg. He is expected to choose a relatively young person who could serve for decades and may opt for someone from outside the traditional path of the federal appellate system.

One other characteristic is critical.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes," Obama said recently.

An announcement is not expected this week but will likely come in May. Gibbs said Tuesday that the White House would prefer to have the confirmation wrapped up before the Senate's August break, which would leave June and July for reviewing the candidate, hearings and voting.

On Wednesday, Obama meets with senators from both parties who will be deeply involved in the confirmation process.

Outside groups and even the Senate's newest Democrat, Arlen Specter of Pennsylvania, have urged Obama to choose a female, arguing that women are underrepresented on the court. Other organizations have pressed for the president to select a Hispanic.

The White House, determined to cast Obama's decision as his own, has signaled to advocacy groups to keep their campaigns to themselves.

"I don't think that the lobbying of interest groups will help," Gibbs said. "I think in many ways lobbying can, and will, be counterproductive."

A host of factors give Obama the chance to do what every president desires -- pick who he really wants.

He is popular president still in the infancy of his term. He has a strong Democratic majority in the Senate. He had names of potential nominees in mind before he took office, and Souter gave him plenty of time to get someone confirmed before the next court begins its term in October.

And Obama may be in position to make at least one more nomination this term due to retirement. Ginsburg is 76 and recently underwent cancer surgery. Justice John Paul Stevens is 89, the oldest member of the court.

That gives him some political leeway should he disappoint some of his left-leaning constituencies by not choosing someone from a particular demographic group this time around.

"This decision will clearly show whether this is the Barack Obama of the campaign trail who's a modern trans-partisan pragmatist, or whether he is following the litmus-test standard of a whole host of radical judicial groups," said Gary Marx, executive director of the conservative Judicial Confirmation Network.

Obama has set out his fundamental criteria: Someone who is dedicated to the rule of law, honors constitutional traditions and respects what he calls the appropriate limits of a justice's role. He said he wants a person with an excellent record and a sharp, independent mind.

Yet the X factor might be his other criterion -- a sense of court decisions in the context of daily lives.

It is why Obama said he voted against Chief Justice John Roberts in 2005 despite acknowledging that Roberts was plenty qualified to sit on the high court. Obama said then that adherence to precedent and rules of interpretation only go so far.

In the toughest cases, Obama said, "the critical ingredient is supplied by what is in the judge's heart."

In essence, Obama wants someone who gets it.

He taught constitutional law at the University of Chicago. In his memoir "The Audacity of Hope," Obama devoted a chapter to the Constitution, referring to it as a living document that must be read in the context of today's world.

"He does possess many of the qualities that he's described -- stellar legal credentials, understanding the law, being familiar with the process," said Marcia Greenberger, co-president of the National Women's Law Center. "That's part of his strength, which he not only brings to governing, but to the search."

The key players involved in helping Obama manage the tightly held search include Vice President Joe Biden and his chief of staff Ron Klain, White House counsel Greg Craig, White House chief of staff Rahm Emanuel, senior adviser David Axelrod and Gibbs. The counsel's office is playing a major role in compiling the background and legal opinions, where they exist, of the candidates.

"Knowing the way the president works," Gibbs said, "the circle of people that truly knows what's going on will be small."

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