For high court, Obama could seek moderation, empathy

President Obama, confirming that Supreme Court Justice David Souter will retire in June, said this afternoon that he will seek a nominee "with a sharp and independent mind and a record of excellence and integrity" and an understanding of the real world.

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is 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," Obama said, interrupting his press secretary's daily briefing to say he had talked to Souter.

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

The president said he told Souter he is 'incredibly grateful for his dedicated service." (Souter's resignation letter is below.)

Obama said that Souter had shown what it is like to be a "fair-minded and independent judge."

Obama said he plans to name someone by the time the court's new term starts in October, and will consult with lawmakers of both parties.

(His full remarks are below.)

White House spokesman Robert Gibbs said that since the transition, officials have been making preparations for a Supreme Court appointment.

Gibbs also reaffirmed that Obama will pick someone who supports a woman's right to choose abortion and Roe v. Wade, but denied that that amounted to a litmus test. The president wants someone with a diverse background, Gibbs said.

What kind of jurist will Obama look for to replace Souter? Based on what he said as a candidate, perhaps someone very much like Souter, at least in a more moderate, restrained judicial philosophy.

While the president was rather circumspect during the campaign, he did suggest he would like those with real world experience and empathy for the vulnerable, possibly expanding the pool of candidates beyond the usual farm team of federal appeals court justices. (All nine justices now are former federal appeals court judges.)

In an interview with the Detroit Free Press editorial board last October, he praised Souter and Justice Stephen Breyer 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 continued 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."

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom," Obama said at a Planned Parenthood conference in 2007. "The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criterion by which I'm going to be selecting my judges."

In the Detroit interview, while he also praised the more liberal Earl Warren, William Brennan, and Thurgood Marshall as "heroes of mine," he added, "that doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

Obama went on to say that while activist judges were needed to "break that logjam" on racial discrimination, he wasn't sure the same was needed today. "In fact, I would be troubled if you had that same kind of activism in circumstances today."

UPDATE: Republicans are also playing things close to the vest.

"I'm not going to talk about any particular nominees," Senator Orrin Hatch of Utah, a former Senate Judiciary Committee chairman who could become the panel's senior Republican again with the party switch by Senator Arlen Specter of Pennsylvania.

But speaking generally on MSNBC, Hatch said he wants a nominee who will not make law and or act as a "superlegislator from the bench, but rather will interpret the law and defer to elected officials.

That should be the most important criteria for selection -- not real-life experience or empathy with women or minorities, he said.

"It's going to be a very interesting matter," Hatch said. "These are some of the most important positions in the world."

Meanwhile, CNN reports that Specter believes a second woman on the court "would be a good idea."

"I think that given the proportion women in our society, 1 out of 9 is underrepresented. But the court could use some diversity along a number of lines," he said at a Philadelphia news conference.

Specter said he would like to see Obama consider African-American, Hispanic, and female candidates, and said he is looking for a nominee with a good education, strong professional experience, and "a determination to follow the Constitution and to follow statutes enacted by Congress and not to take upon himself or herself to make new laws."

"I have never had a litmus test, Specter said, according to CNN. "I have supported very conservative nominees like Justice [Antonin] Scalia and very liberal nominees like Justice Ruth Bader Ginsburg, I think that's the way it ought to be handled."

Senator Sheldon Whitehouse, a Rhode Island Democrat on the Judiciary Committee, said this afternoon he agrees with Obama's focus on real-life experience and very comfortable with an emphasis on diversity.

"I think the president has pretty well nailed it," Whitehouse said on MSNBC. "Obviously, you have to be able to meet the intellectual demands of the court. I hope that it is someone who brings a broad experience to the court. And I think as the president said, it's very important that people see the sense of justice that motivates our legal process as a real one and as a practical one, and as one that hits home in America's families and neighborhoods, and not something that's ideological or mechanical or very remote. And I think the president's committed to doing that."

He added, "I think it's clear to all of us that the court is unbalanced in the direction of white males, and that both gender and ethnic diversity would be useful on the court."

Leahy issued this statement on Souter and the coming nomination fight: "Justice Souter has served the nation with distinction for nearly two decades on the Supreme Court. I have admired his commitment to justice, his admiration for the law, and his understanding of the impact of the Court’s decisions on the daily lives of ordinary Americans.

"Throughout his career, he has been committed to the law and not to ideology. New Englanders treasure our strong sense of independence, and Justice Souter fits the independent Yankee mold. He has a first-rate legal mind. I have known him to be an honest and tireless person who has given years of his life in service to this country.

"Of course, we have all known that his deep love for New Hampshire would take him away from the Court some day. Nonetheless, I am sad to see a gifted jurist, a dedicated public servant and a decent man leave the bench. We have long been neighbors in New England, and I look forward to seeing him at home.

“Now more than ever, while the country is in the throes of an economic recession, and fighting to strengthen our economic and national security, Americans are looking to Washington for leadership and cooperation. I know that as President Obama selects a nominee to replace Justice Souter, he will continue to consult with senators from both sides of the aisle as he has this year with so many nominations. In exercising their important roles in the confirmation of the next Supreme Court Justice, I hope that all senators will take this opportunity to unify around the shared constitutional values that will define Justice Souter’s legacy on the Court.”

Mitch McConnell, the top Republican in the Senate, issued his own statement: "I thank Justice Souter for his service and wish him well in his future endeavors once he leaves the Supreme Court. I trust the president will choose a nominee for the upcoming vacancy based on their experience and even-handed reading of the law, and not their partisan leanings or ability to pass litmus tests. A Supreme Court nominee needs to be able to fulfill the judicial oath of applying the law without prejudice, and not decide cases based on their feelings or personal politics.Once there is a nominee, I will work to ensure that their record is thoroughly reviewed and that there is a full and fair debate.”