May 18, 2009 / 5:40 AM / 10 years ago

Battle looms as Obama nears Supreme Court pick

WASHINGTON (Reuters) - President Barack Obama hopes to tone down the partisan warfare that often surrounds selections to the Supreme Court, but that won’t be easy with interest groups bracing for a fight over issues like abortion.

Men are pictured on the front steps of the Supreme Court in Washington in ths February 16, 2006 file photo. REUTERS/Joshua Roberts

Obama has been weighing a short list of mostly women for a seat on the nine-member high court that decides such issues as abortion and the death penalty as well as business and property rights cases. The court’s members are appointed for life but require Senate confirmation.

The pick, expected to be announced later this month, is unlikely to change the court’s ideological makeup since Obama, a Democrat, is expected to pick a liberal in the mold of retiring justice David Souter.

Some experts think Obama, a former lecturer in constitutional law, may seek someone with the intellectual firepower and personality to go to toe-to-toe with two of the court’s most conservative members, Antonin Scalia and Samuel Alito. Though well regarded for his intellect, Souter is relatively low-key.

Eugene Volokh, a professor at UCLA School of Law in California, said a fight will likely loom even though the Democratic majority in the Senate means any Republican effort to derail the nominee would probably fail.

“It’s pretty clear the people on the other side are going to fight against the appointment of people with whom they disagree,” Volokh said. “The degree of controversy depends on just how far left this nominee is going to be.”

Noting that Obama, a former senator, voted against Republican President George W. Bush’s two Supreme Court nominees, John Roberts and Samuel Alito, Volokh said it is unrealistic for Obama to expect conservatives to “engage in unilateral disarmament.”

Solicitor General Elena Kagan, who argues for the government before the Supreme Court, and two federal appeals court judges — Sonia Sotomayor and Diane Wood — are among those under consideration by Obama, according to a source familiar with his thinking.

Also in the mix are Michigan Democratic Governor Jennifer Granholm, Homeland Security Secretary Janet Napolitano, and California Supreme Court Justice Carlos Moreno. Many analysts believe Obama will pick a woman to join the only other female justice, Ruth Bader Ginsburg.


Hoping to show he is taking a consultative approach, Obama has been meeting with key Democratic and Republican members of the Senate, which must vote to approve the nominee.

“We would like to put the confirmation wars of the past behind us, and have signaled that with our consensus-oriented approach to appellate court nominations,” White House spokesman Ben LaBolt said.

In explaining his opposition to Roberts in 2005, Obama praised him as an “outstanding legal thinker” and he said he disagreed with his legal philosophy, calling it one that gave more deference to the powerful in U.S. society. But he chastised both liberal and conservative allies for stirring up partisanship in the debate.

Administration officials said Obama hopes for less acrimony over the current Supreme Court opening, though in an indication of an awareness of the potential for controversy, Treasury spokeswoman Stephanie Cutter is being tapped to move to the White House to manage the media strategy for the nominee.

“Who is he trying to kid?” Republican strategist Keith Appell said of Obama’s hope for a calmer nomination process. “If you’re going to be realistic, you have to anticipate that center-right organizations are going to push to ensure that any nominee is fully vetted and scrutinized by Republican senators.”

Appell said many of the names reported to be on Obama’s short list “raised red flags” among conservatives.

Many Republicans are concerned by Obama’s statement that “empathy” will be an important quality he will look for in a Supreme Court justice. Republicans have said they want justices who will strictly interpret the U.S. Constitution and many have criticized the landmark 1973 Roe vs. Wade decision that legalized abortion as “judicial activism.”

Senator Jeff Sessions, the top Republican on the Senate Judiciary Committee who met with Obama last week, said he would welcome a “highly qualified nominee” from Obama but also wanted to see someone who favored “judicial restraint.”

U.S. President Barack Obama walks through the Cross Hall to a news conference marking his 100th day in office in the East Room of the White House in Washington, April 29, 2009. REUTERS/Jim Young

Stephen Wayne, professor of government at Georgetown University, said a more moderate nominee would trigger less opposition, but either way there would be a battle.

But he added, “We can never forget that nominations for Supreme Court Justices are forums. And people on both sides of the aisle are required to use them to espouse a certain point of view and to use them as a fundraising technique.”

“So I think you can have a much milder circus but you’re still going to have one big tent there and there will be objection to whomever he nominates,” Wayne said.

Additional reporting by Thomas Ferraro; Editing by Eric Walsh

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