Associate Supreme Court Justice David Souter “plans to retire at the end of the term in June.” The Wall Street Journal explained Souter’s legacy, writing, “Justice Souter was no liberal trailblazer,” but in recent years, aligned with the more liberal Justices on the most divisive issues including executive power, capital punishment, and race. While speculation is rampant about who Obama will name as Souter’s replacement, a more productive question at this stage is what attributes Obama will look for in a jurist.
From his time in the Senate and statements during the Democratic primary, Obama appears committed to nominating someone who recognizes that the Constitution provides Americans with an inherent right to privacy, someone who can empathize with the “less powerful,” and perhaps someone who understands “what it means to be on the outside.” Watch Obama explaining his ideal nominee during a Democratic primary debate:
Obama’s statements echoed his earlier opposition to Justice Samuel Alito and Chief Justice John Roberts.
More recently, during the 2008 general election campaign Obama struck a slightly more conservative tone by warning that the “activism” of the Warren Court, which played a significant role in expanding civil rights and liberties in 1950s and 1960s, would not be appropriate today. He told the Detroit Free Press in October 2008 that he would look to nominate judges who took after Souter or Justice Stephen Breyer:
Q: [W]hat justices would you use as models for your pick?
OBAMA: Well, it depends on how far you go back. I mean, Justice (John) Marshall was pretty good. Warren himself, Brennan, (Thurgood) Marshall. But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today. … In fact, I would be troubled if you had that same kind of activism in circumstances today. […]
I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are 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.
Several weeks later, Obama said in a debate with Sen. John McCain (R-AZ) that he “will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.” Using the example of Lilly Ledbetter, Obama elaborated:
OBAMA: For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it’s taken you too long to bring this lawsuit, even though she didn’t know about it until fairly recently.
I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.
Conservatives will likely take issue with anyone that Obama nominates. Even before Obama was sworn in, Sen. Jon Kyl (R-AZ) declared that he planned to filibuster any Obama Supreme Court nominee that he viewed as “too liberal.”
Update:
Media Matters Action Network asks if Republicans in Congress will “remain consistent” with their 2005 position that filibustering judicial nominees is unconstitutional.