A debate among Democrats over who should replace Justice David H. Souter on the Supreme Court began emerging Friday between those eager to return the court to its liberal era of 40 years ago and those who are wary of tacking too far to the left.
But President Obama, who will choose the nominee, focused not on volatile ideological questions but on personal character, saying he wanted someone with “empathy” for “people’s hopes and struggles.”
Making a surprise appearance in the White House press briefing room, Obama told reporters that he had just talked with Souter by phone about his retirement, which is to take effect at the end of this court term, probably in June. It was the first official confirmation of the justice’s departure.
Obama said that in considering a successor for Souter, he was looking for a “sharp and independent mind” and a sense of compassion.
“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook,” he said. “It’s also about how our laws affect the daily realities of people’s lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”
Even before the president spoke, interest groups that had seen early reports of Souter’s decision began lobbying the White House and the public.
With white men holding seven of the nine court seats, Obama came under heavy pressure to name a woman or minority, especially a Latino.
Others said they were eager for him to name a high-profile, clear-cut liberal. The last justice to fit that mold was Thurgood Marshall, who took the bench in 1967. Liberal groups argued that the Democratic Party’s majority in the Senate, which is nearly large enough to overcome any obstacles set by Republicans, gives Obama far more latitude than most presidents in making his choice.
“If there was ever an opportunity for Obama to make a bold statement, this is the time,” Stanford law professor Pamela Karlan said.
Others cautioned that the wrong selection could alienate moderate Democrats or set off a protracted fight with Republicans that could undermine Obama’s ambitious healthcare and environmental agenda.
“This is an opportunity for him to make a post-partisan choice to fortify the vital center on the Supreme Court,” said Will Marshall, president of the Progressive Policy Institute, a centrist Democratic think tank.
While reviewing the records of potential nominees, the president’s advisors have discussed the importance of finding a justice who can build majorities on the court by reaching out to conservatives.
The decision will probably be a pillar of Obama’s legacy: The choice of Supreme Court justices, with their lifetime tenure and vast sway over American law, gives presidents one of their most powerful tools to shape the country beyond their own White House years.
One longtime friend of Souter’s suggested Friday that Obama’s election and powerful hand in the Senate had prompted the justice to act on a long-held desire to retire.
“He hasn’t been enjoying the Washington scene” and could have retired several years ago, said John McCausland, vicar of Holy Cross Episcopal Church in Souter’s hometown of Weare, N.H. “But it looks like he has 60 votes in the Senate and a president -- well, you can figure out the rest.”
Souter is expected to return to the modest 200-year-old New Hampshire farmhouse where he has lived since he was 11. (He has kept a small apartment in Washington.)
“He has been talking every year about his desire to retire at the appropriate moment,” McCausland said. “He’s looking forward to having a life again.”
That life will include hiking and book collecting. Souter has so many volumes, McCausland said, that he may build a new structure to house and organize them.
In addition, he may do some work with the U.S. 1st Circuit Court of Appeals in Boston.
The Obama team has been preparing for a Supreme Court nomination for months. The president set up a judicial working group just after his election in November, and charged it with drawing up a list of candidates for the high court and federal courts around the country.
As early as December, during meetings in Chicago and Washington, Obama suggested the names of people he would seriously consider for the Supreme Court, according to an administration official familiar with the process.
After Obama’s inauguration, the review became more formal and more intense. The effort was led by White House Counsel Greg Craig, who established a small team to vet possible nominees.
Atty. Gen. Eric H. Holder Jr. and his staff are not likely to play a primary role in selecting the nominee or trying to win confirmation, according to one senior administration official who requested anonymity when discussing Obama’s plans.
A larger influence will be Vice President Joe Biden, who in his former role as chairman of the Senate Judiciary Committee presided over several Supreme Court nomination fights. A member of the White House staff said that Biden’s role would be “informal and ad hoc,” but would include frequent consultation with the president, particularly on questions of strategy.
Ron Klain, Biden’s chief of staff and a former clerk to Justice Byron R. White, also will be involved, the senior official said. Klain was chief counsel to the Senate Judiciary Committee during the tumultuous confirmation hearings of Justice Clarence Thomas.
Still, the center of power clearly will remain in the Oval Office. The president, who once taught constitutional law, signaled Friday that he personally would run the process along with Craig and other senior advisors.
Obama has sent mixed signals about what kind of jurist he would appoint, in contrast with George W. Bush, who as a presidential candidate left no question that he would choose conservatives in the mold of Antonin Scalia.
In a 2008 interview with the Detroit Free Press, Obama identified Marshall and other liberal icons of the court as “heroes of mine.” But he added: “That doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”
At other times, Obama suggested that he was inclined to name moderates in the mold of President Clinton’s choices of Ruth Bader Ginsburg and Stephen G. Breyer -- not known as bold advocates of liberal jurisprudence in the way Scalia is viewed on conservatism.
During Obama’s U.S. Senate tenure, 2005 to 2008, the parties were locked in bitter partisan conflict over Bush’s judicial nominees. Obama was one of 25 senators who supported a filibuster against the Supreme Court nomination of Samuel A. Alito Jr.
But he also has expressed reservations about the tactic.
In “The Audacity of Hope,” his second memoir, Obama wrote that he had sympathy for the view that a president has the right to his own judicial nominees, and that Democrats should not try to win victories through parliamentary maneuvers such as filibusters.
“Elections ultimately meant something,” he said he told a friend. “Instead of relying on Senate procedures, there was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.”
Obama brings a unique piece of biography to the job of choosing a court nominee: his years as a community organizer. That line in his resume seems to be a big part of his thinking about what he would like to add to the current court, which for the first time is made up entirely of people who served as federal judges before their nomination.
In the Detroit Free Press interview, Obama said he would be looking for someone who “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.”
Tom Hamburger, James Oliphant and David G. Savage in the Washington bureau contributed to this report.
(BEGIN TEXT OF INFOBOX)
Who will fill his shoes?
Here are some of the names being mentioned as possible replacements for Justice David H. Souter:
United States solicitor general
Background: A former dean of Harvard Law School and a former Supreme Court clerk for Justice Thurgood Marshall, she worked for President Clinton, who unsuccessfully nominated her to a federal judgeship. Like President Obama, she once taught at the University of Chicago Law School. An administrative law scholar and defender of a president’s right to use federal regulatory agencies to advance policy agendas, she barely avoided a potential filibuster of her solicitor nomination.
Judge, U.S. 7th Circuit Court of Appeals in Chicago
Background: The longtime University of Chicago law professor worked for Presidents Reagan and Clinton in the Justice Department and President Carter in the State Department. An antitrust, trade and civil procedure scholar, she clerked for Supreme Court Justice Harry Blackmun. She is well liked by Obama’s liberal base and shares a Chicago connection with the president. But she already is under fire from antiabortion groups, particularly over a decision allowing prosecutors to use a racketeering law to target abortion protesters.
Judge, U.S. 2nd Circuit Court of Appeals in New York
Background: The former New York County assistant district attorney was appointed to the federal bench by President George H.W. Bush in 1991 and then elevated by Clinton. Born to a Puerto Rican family in a Bronx housing project, she received bipartisan support for the appeals court job. Conservatives would probably attempt to paint her as extremely liberal and question her judicial temperament. She would be the first Latino on the court.
Governor of Michigan
Background: The two-term Democratic governor and former state attorney general was born in British Columbia, Canada, and spent time in Los Angeles as an aspiring actress -- working as a tour guide at Universal Studios and in the circulation department of the Los Angeles Times.
Governor of Washington
Background: Like Granholm, she is a former state attorney general. Born in Michigan, she grew up on a farm in Auburn, Wash., and worked as a clerk-typist for the state parole board and as a welfare caseworker. In 1998, she was lead negotiator of a $206-billion settlement between 46 states and the tobacco industry.
Governor of Massachusetts
Background: A Harvard Law School grad from the South Side of Chicago, he was tapped by Clinton for the nation’s top civil rights post in the Justice Department. After several years in private practice, he became governor in 2006. The Democrat is a longtime Obama ally and would become the second African American on the current court. He was involved in a recent hiring controversy, and while in Justice, he angered conservatives with his staunch defense of racial preferences in hiring.
Source: Times research