Make us your home page

A world of diversity to be weighed for Supreme Court

WASHINGTON — The current Supreme Court, made up entirely of former federal appeals court judges, is in some ways the most insulated and homogenous in American history.

None of the justices has held elective office. All but one attended law school at Harvard or Yale. And the only three justices in American history who never worked in private practice are on the current court.

His reputation for reclusiveness notwithstanding, Justice David Souter brought real-world experience to the court, having served as a trial judge in New Hampshire and as the state's attorney general. No other justice has either sort of experience.

Souter's departure, formally announced Friday, thus presents President Barack Obama with more than the usual array of choices based on credentials, ideology and demographics. Obama also has the opportunity to move the court back toward what it has been for most of its history: a collection of prominent individuals with broad experience.

"The court could use some diversity along a number of lines," said Sen. Arlen Specter, D-Pa.

Senators and interest groups on both ends of the ideological spectrum began mobilizing Friday for the first court confirmation battle of Obama's presidency.

Until recently, Supreme Court justices were often former legislators, governors, Cabinet members, law professors and practicing lawyers. Souter, 69, who surprised his conservative patrons with his generally liberal votes, bears some of the blame for the emergence of what scholars call the norm of prior judicial experience.

During the campaign last year, Obama said he would consider candidates with practical political experience, pointing to Earl Warren, who was governor of California before he became chief justice in 1953. The Warren Court was a golden age for liberals, and the chief justice's political skills helped unify the court.

That sort of thinking might argue in favor of candidates like Gov. Jennifer Granholm of Michigan, Gov. Deval Patrick of Massachusetts and Janet Napolitano, the Homeland Security secretary and a former governor of Arizona.

Many political observers expect the nominee will be a woman, and Obama finds a vastly altered field from when President Ronald Reagan decided to appoint a woman to the Supreme Court in 1981. Today, women hold dozens of seats on the nation's appellate courts, occupy dean's offices at prestigious law schools and serve in some of the highest political offices in the nation.

Yet despite the rising prominence of women in the legal profession and the political world, the Supreme Court remains something of a male-dominated throwback. The only woman currently on the court is Ruth Bader Ginsburg, who is 76 and recently underwent surgery for pancreatic cancer. That imbalance — and the possibility that Ginsburg will be next to leave the court — is one reason some are calling for Obama to appoint a second woman to the court.

Near the top of many lists of possible nominees is Sonia Sotomayor, 54, a federal appeals court judge of Puerto Rican descent.

Souter's replacement is virtually certain to confront crucial national security issues including ongoing questions over U.S. treatment of detainees. The new justice will likewise face an ongoing shift in how much power the federal government may have relative to the states.

Executive power disputes are not only certain, but also frequently defy conventional liberal vs. conservative stereotypes. For instance, Obama and Solicitor General Elena Kagan, who has been mentioned as a potential Souter replacement, are both sympathetic to robust executive powers that some liberals fear.

Whatever direction the vetting and selection process takes, two things are clear.

The calls will be coming from the constitutional law professor who now occupies the Oval Office. Obama made clear his intended level of involvement.

"The process of selecting someone to replace Justice Souter is among my most serious responsibilities as president," Obama said. "I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book."

Second, although the process gives liberals and conservatives alike a fresh reason to mobilize, the eventual nominee is likely to face a smooth path to confirmation in a Senate where Democrats control 59 seats, and could soon add a 60th.

The White House hopes the new justice will be confirmed in time to be seated by the first Monday in October, when the court's new term begins.

Other Times wires were used in this report.

Possible nominees

Elena Kagan, 49, U.S. solicitor general and former Harvard Law School dean.

Pamela Karlan, law professor at Stanford University. Co-founded the Stanford Law School Supreme Court Litigation Clinic.

Sandra Lea Lynch, chief judge of the 1st U.S. Circuit Court of Appeals.

Michigan Gov. Jennifer Granholm, Michigan attorney general, 1999-2002.

Massachusetts Gov. Deval Patrick, lawyer for NAACP Legal Defense Fund, 1983-86; had private practice; Texaco vice president and general counsel, 1999; Coca-Cola executive vice president and general counsel, 2001-04.

Leah Ward Sears, chief justice of the Georgia Supreme Court.

Sonia Sotomayor, 54, a federal appeals court judge and former assistant D.A.

Kathleen Sullivan, 53, former dean of Stanford Law School and Stanford constitutional law professor.

Cass Sunstein, University of Chicago law professor, nominated by President Barack Obama recently to head the White House Office of Information and Regulatory Affairs.

Kim Wardlaw, 54, appeals court judge.

Diane Wood, 58, appeals court judge, former Obama colleague at the University of Chicago law school.

Souter's once and future home

David Souter likely will return to this 200-year-old farmhouse his grandparents once owned and where he has lived since he was 11 years old. The house, on a dead-end dirt road in Weare, N.H., is bursting with books friends say he is eager to organize and read. Federal judges can retire on full salary — $213,900 for justices this year — at Souter's age and experience, but he said he plans to keep working as a judge. He doesn't have much need for the money. He has a seemingly frugal lifestyle and is worth between $6 million and $30 million, much of which is in shares in a regional banking company, Chittendon Corp., his 2008 financial disclosure reported.

A world of diversity to be weighed for Supreme Court 05/01/09 [Last modified: Friday, May 1, 2009 11:34pm]
Photo reprints | Article reprints

Copyright: For copyright information, please check with the distributor of this item, New York Times.

Join the discussion: Click to view comments, add yours