Obama may break with tradition for high court pick

Obama is widely expected to nominate a woman - and could make history by choosing what could be the high court's first African-American female or Latino, according to legal and political analysts. Early speculation centered yesterday on two federal judges - including a former colleague at the University of Chicago law school - and his newly confirmed solicitor general. As a presidential candidate, however, Obama suggested he is willing to break with modern tradition and nominate someone outside the federal judiciary with real world experience, possibly broadening the pool of candidates to elected officials and others.

In a surprise visit to the White House press room, Obama said he had spoken to Souter, 69, who officially announced he is retiring when the Supreme Court term ends in June. The president called Souter the epitome of "a fair-minded and independent judge" who worked tirelessly and "with integrity, equanimity, and compassion - the hallmark of not just being a good judge, but of being a good person."

Obama also said he intends to consult with Republican and Democratic congressional leaders in his search for a new justice, and hopes his nominee - "him or her" - is confirmed by the Senate by the first Monday in October, when the high court begins its new session.

Despite Democratic control of the Senate, which will vote on the nomination, Obama still must navigate a political minefield - and the political timing is less than ideal as he tries to win enough Republican support to overhaul healthcare and energy policy.

As supporters on the left pressure Obama to pick a liberal superstar to counter the court's rightward tilt, Republicans are marshalling forces in opposition, with some GOP lawmakers reminding Obama he'll need their votes to help push his ambitious agenda through Congress. Obama's conservative critics are using the impending vacancy to galvanize a demoralized Republican base, warning that Obama will pick someone who will broaden government power and widen abortion rights.

Whom Obama chooses "depends on what his priorities are," said Ilya Shapiro, a court specialist with the nonpartisan Cato Institute.

If the president picks someone seen as a firebrand liberal, he risks open warfare with Republicans, Shapiro said. By choosing a more moderate nominee, Obama could conserve his political muscle until after Congress passes his economic agenda and healthcare plan, then push a more liberal candidate for any other opening on the court.

But one legal analyst who is a former staff member to a Democrat on the Senate Judiciary Committee takes the opposite view: Since Republicans are spoiling for a fight - and since Obama has the votes in Congress and high approval ratings - now is the time for him to nominate a young, liberal jurist who can do battle against the court's conservative bloc.

"We're going to have a fight," said the staff member, who spoke on condition of anonymity because he is not authorized to speak publicly about the matter. "Might as well send up someone who makes a difference."

The White House has been anticipating a Supreme Court vacancy since the early days of the transition, preparing for at least one of the justices to step down by the end of this year's term, according to an administration aide. Obama, who will be making the first high court nomination by a Democrat in 15 years, convened a working group, gave them some guidelines, and personally suggested a few names.

High on lists of possible nominees are federal appeals court judges Sonia Sotomayor and Diane Pamela Wood, who taught law with Obama at the University of Chicago, along with former Harvard Law School dean Elena Kagan, just confirmed as US solicitor general. If selected and confirmed, Sotomayor would be the court's first Latino justice.

Yesterday, echoing remarks from his campaign, Obama said he intends to find a nominee "who understands that justice isn't about some abstract legal theory or footnote in a casebook" but is also about "how our laws affect the daily realities of people's lives."

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

During his campaign, Obama also emphasized diversity of experience and background as part of that empathy. "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," Obama said at a Planned Parenthood conference in 2007, explaining why he voted in the Senate against confirming conservative Justices Samuel Alito and John Roberts.

On Capitol Hill yesterday, Senator Sheldon Whitehouse, a Rhode Island Democrat on the Senate Judiciary Committee, told MSNBC that he agrees with Obama's goal to diversify the court because "it's pretty clear to all of us the court is unbalanced in the direction of white males, and that both gender and ethnic diversity would be useful on the court."

But Senator Orrin Hatch of Utah - a former Judiciary chairman who could become the committee's senior Republican - said Obama should nominate someone who will only interpret the law and defer to the legislative branch.

"One of the problems here is that now President Obama, when he was running for president, made it very clear that he is going to consider political qualifications and whether or not they'll be activist judges for liberal causes," said Hatch, who voted for both Sotomayor and Wood for the appeals court, on MSNBC. "Well, that should have no role whatsoever."

Although Obama isn't likely to announce his nominee before summer, the battle lines are being drawn between conservative and liberal advocacy groups.

Marcia Greenberger, co-president of the National Women's Law Center, said it's imperative that the president select a woman to join forces on the court with Justice Ruth Bader Ginsburg. "We have clearly moved past the days when one woman on the highest court in the land is sufficient," she said.

But Ed Whelan, president of the conservative Ethics and Public Policy Center, said he believes the president "will seek left-wing judicial activists who will indulge their passions" instead of viewing the law impartially.

As both sides push or bash possible nominees, Souter himself offers a cautionary tale.

President George H.W. Bush nominated him in 1990 believing he was a conservative, but once given the lifetime appointment, Souter voted reliably with the court's liberal bloc.