Wanted: A consensus-building justice

Right after President Obama learned a vacancy would be opening on the Supreme Court, he sent his staff on a targeted hunt for a rare breed he called “the consensus builder.”

He wanted a progressive lawyer or judge who occasionally wins over conservative colleagues, he said, or an elected official who crosses the partisan divide — someone who, his staff realized right way, was a lot like Obama himself.

Obama is beginning to interview a handful of finalists, looking for the one who might join a divided court and work with members of the conservative majority to moderate their decisions, advisors said.

But it’s not just his own legislative accomplishments he’s looking to protect. Weighing heavily on the president’s mind is the court’s January decision to strike down longstanding laws that barred corporations from pouring money into election races, and the possibility that it may be a harbinger of conservative activism to come.

An activist conservative court could void all sorts of federal laws won through hard-fought battles in Congress, no matter how long ago they were enacted.

“We just saw the court, in the Citizens United ruling, uproot 100 years of precedent, giving corporate America a much greater role in our elections,” said David Axelrod, a senior advisor to the president. “Some would say that was judicial activism. …The president is first and foremost concerned with finding a justice who understands the Constitution, but he also wants one who respects precedent and understands the effects of decisions on the lives of everyday Americans.”

A dark horse candidate from Montana, federal Judge Sidney Thomas, has emerged as someone who might fit that criteria. White House vetters characterize him as a liberal who has nevertheless won conservative support on his court.

Other possible contenders, federal Judges Diane Wood and Merrick Garland and Solicitor General Elena Kagan, are also described by White House staffers as consensus builders.

“The president is a very pragmatic person who is far less wedded to the process and the mechanics of how you get something done, and much more wedded to what will the results be,” said Robert Gibbs, White House press secretary. “He’s much more results-oriented. If you’re that, you realize you’ve got to bring some consensus to get things done.”

A high priority on judicial restraint is not a new concept for Obama, a constitutional lawyer who taught for years at the University of Chicago Law School, a bastion of conservative legal thought.

Three years ago, as a U.S. senator, Obama reacted sharply when the high court threw out an equal-pay verdict in favor of Lilly Ledbetter, an Alabama woman who was paid far less than men for doing the same job. The 5-4 majority said she had waited too long to sue, even though she did not know she was paid less during her working years.

That ruling, along with the Citizens United decision, has heavily influenced the White House deliberations over the nominee to replace Justice John Paul Stevens when he retires this summer.

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Obama said during an impromptu conversation with reporters on Air Force One last week. “And in the ‘60s and ‘70s, the feeling was that liberals were guilty of that kind of approach.

“What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error,” he said.

“What you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly elected representatives.”

In the ongoing West Wing conversation, Obama comes back time and again to the premise that a bridge builder could be far more important to his vision for the country than a justice who goes down in history writing eloquent dissents, officials say.

“The way [the president] looks at the Supreme Court is, do you want somebody who’s going to write a great dissent for the four?” Gibbs said. “Or do you want a group of people whom you’ve put your imprint on that can get five people together on behalf of improving people’s lives?”

cparsons@latimes.com

david.savage@latimes.com