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Barack Obama Supreme Court candidates

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Speculation has begun to take shape over potential nominations to the Supreme Court of the United States by President-elect Barack Obama.

Overview

Throughout much of the history of the United States, the Supreme Court of the United States was clearly the least powerful branch of the government, just as is often considered the Founding Fathers' intention, and nominations to that body, although important, were not the source of great political controversy as they are today. Until the death of Chief Justice Rehnquist, the composition of the Supreme Court had remained unchanged since 1994, the second longest time period without a membership change in U.S. history (the longest having been from 1812–1823).

Furthermore, the current court has been sharply divided on a number of high-profile issues, including abortion rights, affirmative action, the extent of Congressional power under the Commerce Clause, eminent domain, gay rights, the separation of church and state under the Establishment Clause, sovereign immunity, and states' rights. The number of close votes in cases involving these areas suggests that a change of one or two key justices could completely shift the thinking of the Court on such issues.

As is common in Presidential election campaigns, pundits have speculated as to which Justices are most likely to retire during the next president's tenure. These commentaries have often noted that John Paul Stevens is 88 years old, and that Ruth Bader Ginsburg is 75.[1] As an NPR report has noted, "Most observers of the Supreme Court agree about one thing: The next nominee is likely to be a woman".[2] It has also been noted that "[t]he next Democratic president will also feel strong pressure to appoint a woman or a Latino justice--or both".[3] Furthermore, given the relative youth of the most recent Republican appointments, "Democrats have a strong incentive to pick younger justices this time around".[3]

Politics

During the 109th Congress, Obama voted against both of President George W. Bush's nominees to the Supreme Court. In his speech announcing his opposition to John Roberts, Obama stated:

The problem I face ... is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those 5 percent of hard cases, the constitutional text will not be directly on point.... In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, ... in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.... The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.[4]

In explaining his opposition to Samuel Alito, Obama further evaluated the qualities he found important in a Supreme Court Justice:

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character. But when you look at his record — when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights.[5]

In a speech on July 17, 2007 before the Planned Parenthood Action Fund, he elaborated even more:

I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there's another vision of the court that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process. ... And 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 -- and that's the criteria by which I'll be selecting my judges.[6]

In November of 2007, Obama was asked about the kind of Justices he would appoint to the Supreme Court. He responded:

I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout. . . . [S]ometimes we're only looking at academics or people who've been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.[7]

Later in March of 2008, while on the campaign trail in Ohio, Obama again addressed the traits he would look for in a Supreme Court justice, suggesting he might leaven legal scholarship with practical political experience. He held up Earl Warren, a former governor of California and the former Chief Justice, as an exemplar. Mr. Warren, he said, had had the wisdom to recognize that segregation was wrong less because of precise sociological effects and more so because it was immoral and stigmatized blacks:

I want people [like Warren] on the bench who have enough empathy, enough feeling, for what ordinary people are going through.[8]

Names mentioned

Following is a list of individuals who have been mentioned in various news accounts as the most likely potential nominees for a Supreme Court appointment under Obama:

United States Courts of Appeals

Courts of Appeals

United States District Courts

State Supreme Courts

United States Governors

United States Senators

Executive Branch officials

Supreme Court litigators

Academics

Other backgrounds

See also

References

  1. ^ Obama presidency could reshape courts, Politico.com (November 1, 2008)>
  2. ^ a b c d e Nina Totenberg, Law School Past Shapes Obama's View On Justices, NPR (November 2, 2008).
  3. ^ a b c d e f Jeffrey Rosen, Short Bench: Why the Dems lack Supreme Court nominees, The New Republic (March 12, 2008).
  4. ^ Obama Senate floor speech opposing John Roberts
  5. ^ Obama Senate floor speech opposing Samuel Alito
  6. ^ Obama Planned Parenthood speech from July 17, 2007
  7. ^ The Democratic Debate, The New York Times, November 15, 2007.
  8. ^ [http://www.nytimes.com/2008/03/03/us/politics/03campaign.html Strong Words in Ohio as Obama and Clinton Press On, The New York Times, March 3, 2008.
  9. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab Democratic SCOTUS Picks, SCOTUSblog (July 12, 2007)
  10. ^ a b c d e f Neil A. Lewis, Stark Contrasts Between McCain and Obama in Judicial Wars, New York Times (May 28, 2008).
  11. ^ a b c d e f Greg Stohr, Obama, McCain Would Look to Women, Hispanics for Supreme Court, Bloomberg.com (July 15, 2008).
  12. ^ a b c d e Mike Allen, Dems sketch Obama staff, Cabinet, Politico (October 31, 2008)
  13. ^ a b c d e f Jess Bravin, Barack Obama: The Present Is Prologue, The Wall Street Journal (October 7, 2008).
  14. ^ Stakes high as Napolitano takes center stage again at DNC, ABC15 Phoenix, (August 27, 2008)
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