Barack Obama’s election probably does not herald a new liberal era at the Supreme Court, since none of the conservative justices -- who are in the majority -- is expected to retire in the next four years.
But if liberals cannot take control, Obama’s win has them pushing for a strong voice for social justice on the high court.
“I think Obama would want to make a statement with his Supreme Court justices. We hope for a justice who can replace the lost voice of an Earl Warren or Thurgood Marshall or William Brennan,” said Nan Aron, president of the Alliance for Justice, a coalition of public interest and civil rights groups. “It’s critically important to have an Obama justice who can be a counterpoint to [Chief Justice John G.] Roberts and [Justice Samuel A.] Alito.”
And many expect the voice to be that of a woman.
“I think it’s a virtual certainty Obama would appoint a woman. It’s absurd that the Supreme Court has only one woman, and everyone recognizes it,” said Thomas Goldstein, a Washington lawyer who practices before the high court.
Three frequently mentioned candidates are Judges Diane Wood, 58, of the U.S. appeals court in Chicago; Sonia Sotomayor, 54, of the U.S. appeals court in New York; and Elena Kagan, 48, dean of Harvard Law School.
Wood knows Obama from her time teaching at the University of Chicago. Sotomayor could be the first Latino named to the high court. Kagan, who served as a domestic policy advisor to President Clinton, has won high marks from conservatives for bringing intellectual diversity to the liberal-dominated law faculty at Harvard.
Among Democrats, Govs. Janet Napolitano, 50, of Arizona and Jennifer M. Granholm, 49, of Michigan also are being talked about for top legal jobs in an Obama administration, either as U.S. attorney general or as future Supreme Court nominee. Both were federal prosecutors and attorneys general for their states before being elected governor.
It is not clear that Obama hopes to put the kind of person on the court that Aron and other liberals are dreaming about.
In an interview with the Detroit Free Press editorial board in October, he described Warren, Brennan and Marshall as “heroes of mine. . . . But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”
He credited the Warren court with ending segregation and opening doors for African Americans. “The court had to step in and break that logjam. I’m not sure you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today,” he said.
Since Richard Nixon’s election in 1968, Republican presidents have named 12 of 14 justices to the high court. Yet the court has never become solidly conservative -- though a victory by John McCain might have provided an opening to secure a majority on the right by replacing the older liberal Justices John Paul Stevens, 88, and Ruth Bader Ginsburg, 75.
President Clinton named the only two Democrats to the court since the 1960s, and he steered away from strong liberals, instead choosing veteran appeals court judges with moderate to liberal records. Ginsburg, soft-spoken and measured, is a champion of women’s rights. Stephen G. Breyer is a pragmatic problem-solver. Neither has been in a position to shape the court’s work.
By contrast, Warren, Marshall and Brennan were leaders of the court in its liberal era. They pressed for civil rights for minorities and women and strengthened rights for criminal defendants. Brennan and Marshall led the court in halting the death penalty for a time in the early 1970s and in striking down laws banning abortion.
The Republican appointees of Presidents Nixon, Reagan and George H.W. Bush put a halt to the liberal activism of the Brennan and Marshall era.
Because of Obama’s background, he is unlikely to rely heavily on advisors to select candidates for the high court.
“The lawyer who will have the most influence on court appointments in the Obama administration will be Barack Obama,” said Walter Dellinger, a Washington lawyer who represented the Clinton administration before the high court. “He was a highly regarded professor of constitutional law at Chicago, which has one of the most intellectually intense law faculties in this country.”
A Harvard Law School graduate, Obama taught for 12 years at the University of Chicago and led classes on voting rights and equal protection of the law. In the Detroit interview, he praised Justices Breyer and David H. Souter, a Republican appointee, as “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’s the kind of justice that I’m looking for,” he went on. “Somebody who respects the law, doesn’t think that they should be making the 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.”
He added that the “special role” of the court is to protect “the vulnerable, the minority, the outcast, the person with the unpopular idea.”
If there is a second most important influence on such appointments, it may well be the vice president. Sen. Joe Biden served on the Senate Judiciary Committee throughout his career, and was chairman during the fights over Supreme Court nominees Robert H. Bork in 1987 and Clarence Thomas in 1991.
Biden, like Obama, knows many of the Democratic appointees to the bench who could be Supreme Court nominees if a vacancy arises. There is no certainty that any justice will retire soon. Ginsburg, among others, has been saying that she has no thoughts of leaving.
The first clash between the Roberts court and the Obama administration could come early next year over the future of the Voting Rights Act.
Two years ago, Congress voted to extend for another 25 years the landmark law that is credited with assuring that blacks in the South had the right to vote as well as the political clout that came with it.
But many Southern officials chafe at a provision that requires them to “pre-clear” changes in voting rules or electoral districts with the Justice Department. Chief Justice Roberts is no fan of the law and once called it “sordid” because it required officials to consider the race of voters when drawing district lines.
In September, lawyers for a Texas municipal district filed a constitutional challenge to the pre-clearance rule, saying it was unfair and outdated. The high court will probably take up the challenge after January, and the Obama administration will be responsible for defending the law.