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Barack Obama Supreme Court candidates

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Speculation has begun to take shape over potential nominations to the Supreme Court of the United States by President Barack Obama. This speculation has been fueled by statements that Obama made during the 2008 Presidential campaign regarding his preferences with regard to judicial appointments, combined with the advanced age of several current members of the Court. A common theme to Obama's description of the type of judge he would appoint is empathy, and the ability to relate to the lives of people affected by judicial decisions.

On April 30, 2009, several media reports announced that Associate Justice David Souter notified the White House that he will retire at the conclusion of the Supreme Court's 2008 October Term, pending his successor's confirmation.[1][2][3] As of May 2009, the likely nominees most universally mentioned by commentators include Sonia Sotomayor, Diane Pamela Wood, and Elena Kagan.

Overview

Barack Obama and Joe Biden with Supreme Court justices in the court's conference room, on January 14, 2009, the week before the inauguration. Shown are Chief Justice Roberts and Justices Stevens, Thomas, Ginsburg, and Souter

Throughout much of the history of the United States, the Supreme Court of the United States was clearly the least powerful branch of the government and nominations to that body, although important, were not the source of great political controversy as they are today.[citation needed]

The current Court has been sharply divided on a number of high-profile issues, including abortion rights, affirmative action, the extent of Congressional power under the Commerce Clause, eminent domain, gay rights, the separation of church and state under the Establishment Clause, sovereign immunity, and states' rights. The number of close votes in cases involving these areas suggests that a change of one or two key justices could shift the rulings of the Court on such issues.[citation needed]

As is common in Presidential election campaigns, pundits have speculated as to which Justices are most likely to retire during the next president's tenure. These commentaries have often noted that John Paul Stevens is 89 years old, and that Ruth Bader Ginsburg is 76.[4] As an NPR report stated, "Most observers of the Supreme Court agree about one thing: The next nominee is likely to be a woman".[5][6] It has also been noted that "[t]he next Democratic president will also feel strong pressure to appoint a woman or a Latino justice — or both".[7] Furthermore, given the relative youth of the most recent Republican appointments, "Democrats have a strong incentive to pick younger justices this time around".[7]

The composition of the Supreme Court was unchanged between 1994 and 2005, the second longest time period without a membership change in U.S. history (the longest having been from 1812–1823).[citation needed]

Politics

During the 109th Congress, then-Senator Obama voted against both of President George W. Bush's nominees to the Supreme Court. In a speech announcing his opposition to John Roberts, Obama stated:

The problem I face ... is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those 5 percent of hard cases, the constitutional text will not be directly on point.... In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, ... in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.... The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.[8]

In explaining his opposition to Samuel Alito, Obama further evaluated the qualities he found important in a Supreme Court justice:

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character. But when you look at his record — when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights.[9]

In a speech on July 17, 2007 before the Planned Parenthood Action Fund, he elaborated even more:

I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there's another vision of the court that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process. ... And 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'll be selecting my judges.[10]

In November 2007, Obama was asked about the kind of justices he would appoint to the Supreme Court. He responded:

I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout. . . . [S]ometimes we're only looking at academics or people who've been in the [lower courts]. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.[11]

Later in March 2008, while on the campaign trail in Ohio, Obama again addressed the traits he would look for in a Supreme Court justice, suggesting he might leaven legal scholarship with practical political experience. He held up Earl Warren, a former governor of California who later became Chief Justice, as an example. Mr. Warren, he said, had had the wisdom to recognize that segregation was wrong less because of precise sociological effects and more so because it was immoral and stigmatized blacks:

I want people [like Earl Warren] on the bench who have enough empathy, enough feeling, for what ordinary people are going through.[12]

Later, however, Obama seemed to step away from the example of Warren. In an interview with the editorial board of the Detroit Free Press on October 2, 2008, Obama said:

There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, (Thurgood) Marshall. But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today . . . In fact, I would be troubled if you had that same kind of activism in circumstances today.[13]

Instead, Obama mentioned current justices David Souter and Stephen Breyer as examples of people he would like to nominate to the Supreme Court in the future:

. . . [W]hen I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.

I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.

That, I think is the kind of justice that I’m looking for — somebody who respects the law, doesn’t think that they should be making law ... but also has a sense of what’s happening in the real world and recognizes that one of the roles of the courts is to protect people who don’t have a voice.[13]

In the third and final presidential debate with Republican nominee John McCain on October 15, 2008, Obama also implied that he would look for a Supreme Court nominee with previous judicial experience:

I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.[14]

Names mentioned

Following is a list of individuals who have been mentioned in various news accounts as the most likely potential nominees for a Supreme Court appointment under Obama:

United States courts of appeals judges

Courts of Appeals

United States courts of appeals judges whose names have been mentioned as possible nominees include:

United States district court judges

United States district court judges whose names have been mentioned as possible nominees include:

State supreme court justices

State supreme court justices whose names have been mentioned as possible nominees include:

Executive Branch officials

State governors

State governors whose names have been mentioned as possible nominees include:

United States Senators

United States Senators whose names have been mentioned as possible nominees include:

Supreme Court litigators

Prominent attorneys whose names have been mentioned as possible nominees include:

Academics

Law professors whose names have been mentioned as possible nominees include:

See also

References

  1. ^ a b c d Totenberg, Nina (April 30, 2009). "Supreme Court Justice Souter To Retire". National Public Radio. Retrieved May 1, 2009.
  2. ^ a b c d Peter Baker and Jeff Zeleny, Souter Said to Be Leaving Court in June, The New York Times (April 30, 2009).
  3. ^ a b c d e f g Ben Smith and Josh Gerstein, Justice Souter to retire, Politico (April 30, 2009).
  4. ^ Obama presidency could reshape courts, Politico (November 1, 2008).
  5. ^ a b c d e Nina Totenberg, Law School Past Shapes Obama's View On Justices, NPR (November 2, 2008).
  6. ^ a b c d e Carrie Johnson, Ginsburg illness puts focus on Obama's choices Washington Post (February 6, 2009).
  7. ^ a b c d e f Jeffrey Rosen, Short Bench: Why the Dems lack Supreme Court nominees, The New Republic (March 12, 2008).
  8. ^ Obama Senate floor speech opposing John Roberts.
  9. ^ Obama Senate floor speech opposing Samuel Alito.
  10. ^ Obama Planned Parenthood speech (July 17, 2007).
  11. ^ The Democratic Debate, The New York Times (November 15, 2007).
  12. ^ Strong Words in Ohio as Obama and Clinton Press On, The New York Times (March 3, 2008).
  13. ^ a b Obama: Fundamental change needed to help Michigan, nation, The Detroit Free Press (October 2, 2008).
  14. ^ Complete final debate transcript: John McCain and Barack Obama, The Los Angeles Times (October 15, 2008).
  15. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab Tom Goldstein, Democratic SCOTUS Picks, SCOTUSblog (July 12, 2007).
  16. ^ a b c d e f Neil A. Lewis, Stark Contrasts Between McCain and Obama in Judicial Wars, New York Times (May 28, 2008).
  17. ^ a b c d e f g h i j Andrew Siegel, Summer Parlor Game: Predicting the Next Justices: Obama Edition , PrawfsBlog.com (July 07, 2008).
  18. ^ a b c d e f g h i j k l m n o p Meteor Blades, Some Photos of David Souter’s Possible Replacement, (April 30, 2009).
  19. ^ a b c d e f Greg Stohr, Obama, McCain Would Look to Women, Hispanics for Supreme Court, Bloomberg.com (July 15, 2008).
  20. ^ a b c d e Mike Allen, Dems sketch Obama staff, Cabinet, Politico (October 31, 2008).
  21. ^ a b c d e f g h i j Howard Anglin, Judge Not: Obama’s Supreme Court appointees would not upset the balance of the bench., The American Conservative (June 2, 2008).
  22. ^ a b c d e f g Stuart Taylor Jr., In the Balance, National Journal (July 26, 2008).
  23. ^ a b c d e f Joan Biskupic, For divided high court, two potential legacies, USA Today (October 23, 2008).
  24. ^ a b c d e f James Oliphant, Five possible nominees for Obama, Chicago Tribune (November 3, 2008).
  25. ^ a b c d Al Kamen, Under Obama, the Envoy Convoy May Screech to a Halt, Washington Post (November 6, 2008).
  26. ^ a b c d e f g Bill Rankin, Courts, Atlanta Journal-Constitution (November 9, 2008).
  27. ^ a b c Liz Halloran, Three Prospects for the Supreme Court, U.S. News and World Report (November 11, 2008).
  28. ^ a b c Andy Sullivan, Obama likely to push courts away from right, Reuters.com (November 14, 2008).
  29. ^ a b c d e David G. Savage, Who would Obama pick for the Supreme Court?, The Los Angeles Times (November 17, 2008).
  30. ^ a b c d e f g h i j Justin Jouvenal, Ten picks for Obama's Supreme Court, Salon.com, (November 19, 2008).
  31. ^ a b c d e f Tony Mauro, Pressure Is on Obama to Name First Hispanic Supreme Court Justice, Legal Times (December 1, 2008).
  32. ^ a b c d e Tom Goldstein, If there is a Supreme Court appointment this summer..., SCOTUSblog (January 24, 2009).
  33. ^ a b c d e f g Adam Liptak, Ginsburg Has Surgery for Pancreatic Cancer, New York Times (February 5, 2009).
  34. ^ a b c d e f g h i j k l Associated PressA look at potential Obama nominees to high court, (April 30, 2009)
  35. ^ a b Abdon M. Pallasch, Could Chicago's Judge Wood fill Ginsburg's seat if she resigns from Supreme Court?, Chicago Tribune (February 8, 2009).
  36. ^ a b c d e f Jess Bravin, Barack Obama: The Present Is Prologue, The Wall Street Journal (October 7, 2008).
  37. ^ a b c Dimitra Kessenides, Does D.C. Circuit Court Judge Merrick Garland Have Supreme Potential?, The Am Law Daily (November 17, 2008).
  38. ^ Bill Rankin, Chief Justice Sears to exit next year, Atlanta Journal-Constitution, (October 29, 2008).
  39. ^ a b Andrew Cohen, Obama, The Supreme Court And DOJ, CBS News (November 5, 2008).
  40. ^ a b Joan Biskupic, Timing and luck crucial for seat on high court, USA Today (December 22, 2008).
  41. ^ a b c Brian Dickerson, Justice Granholm? It's possible under Obama, The Detroit Free Press (November 11, 2008).
  42. ^ Tim Vetscher, Stakes high as Napolitano takes center stage again at DNC, ABC15 Phoenix (August 27, 2008).
  43. ^ Ernest Luning, Salazar could be considered in push to name Hispanic Supreme Court justice, The Colorado Independent (December 3, 2008).
  44. ^ a b Liz Halloran, Obama Victory Ends GOP Hopes for a Much More Conservative Supreme Court, U.S. News and World Report (November 11, 2008).
  45. ^ Dahlia Lithwick Women: Truly The Fairer Sex "Newsweek" (April 11, 2009)
  46. ^ Emily Bazelon, Does Souter's Replacement Have to Be a Woman?
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