Empathy and Judicial Picks Rarely Mix on Capitol Hill
With the retirement of Supreme Court Justice David H. Souter, President Obama has another opportunity to define his young presidency.
The replacement of Souter, who has been a reliable part of what constitutes a liberal bloc on the high court, is not likely to shift the bench's ideological balance. Obama will almost certainly reinforce the liberal bloc and, with the nomination of a youthful justice, conceivably reinvigorate that wing of the court for many years to come. He probably won't pick a Souter, which is to say he will avoid choosing someone whose judicial philosophy isn't already absolutely clear.
Given the makeup of Obama's Cabinet and White House staff, it is plain that diversity is a principal goal in his personnel selections. On a court that is devoid of Latinos and has just one woman and one African American, Obama could instantly alter the gender or racial balance in a significant way. That is why so much of the early speculation on a successor has focused on women in particular.
The court as currently composed represents a narrow slice of America in another way. They are for the most part graduates of two law schools -- Harvard and Yale -- and their routes to the Supreme Court included tenure on appellate circuit courts. Obama's nominee will reveal how much that lack of diversity of background concerns him.
Obama's choice will be important in another way. After a series of inflamed confirmation fights over judicial nominees, will the president be effective in lowering the temperatures on the left and the right as the confirmation process plays out? On this, Obama's record is contradictory.
There are few rituals more established in Washington than the battle over the confirmation of a new Supreme Court justice. It was only a matter of hours after the first reports of Souter's pending retirement that the machinery of the interest groups on the right and the left had cranked into action. With a Democrat in the White House, those on the right were especially vociferous in declaring some potential nominees out of bounds -- as those on the left were during George W. Bush's presidency.
One person who doesn't appreciate all that comes with that ritual -- the to-the-barricades rhetoric, the unforgiving ideological stamping of the nominees, the often overheated attention to hot-button issues -- is a former Democratic senator who spoke of his dislikes almost four years ago in the midst of the confirmation debate over now- Chief Justice John G. Roberts Jr.
This former senator chastised liberal advocacy groups for attacking the ranking Democrat on the Senate Judiciary Committee, Patrick J. Leahy of Vermont, who had decided to support Roberts's confirmation. He also accused groups on both the left and the right of taking an "unyielding, unbending, dogmatic approach" that created "a poisonous atmosphere" when it came to judicial nominations.
"These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process in the past and constrained each and every senator in this chamber from making sure that they are voting on the basis of their conscience," he said.
That former senator was Barack Obama, who then turned around and sided with those liberal advocacy groups in opposing the Roberts nomination. He was just one of 22 senators (all Democrats) to vote no. For a politician with national aspirations, the vote made perfect political sense. But it also seemed to contradict much of what Obama the politician had projected in his then-brief time on the national stage, which was a call to bring the country together, to diminish polarization, to dampen rampant partisanship.
Not that Obama agreed with Roberts philosophically. It was obvious that they looked at the world from different perspectives. But as Obama said at the time, Roberts had the intellect, experience and temperament to qualify him for the court. Obama said he opposed Roberts "with considerable reticence." He explained his vote by saying he feared that Roberts too often would side with the strong over the weak, and that he was too dismissive of those pressing to eradicate racial discrimination or gender bias.
If elections matter -- and Obama has made clear as president to Republicans that he believes they do -- then was Obama simply succumbing to the power of the liberal interest groups? And if he was, was he not contributing to the kind of polarized court battles that he explicitly condemned?
Now as president he has the opportunity both to affect the court and the confirmation process. When he spoke Friday, Obama offered some clues to his thinking about a nominee but little about the process. He said he wanted someone with "a sharp and independent mind and a record of excellence and integrity." He also said he will look for someone with empathy, who understands the struggles of all kinds of people and how the court's decisions affect their daily lives.
John Podesta, who helped organize the transition for Obama, said he believes that "argues for someone who's going to be mainstream, moderate in their orientation." His hope, he said, is that Republicans will, after a rigorous confirmation hearing, strongly support Obama's choice, though he said he doubted that would be the case, particularly among the outside groups.
Republicans are wary of the criteria that Obama may apply. The "empathy" test, said Sen. Lindsey O. Graham (R-S.C.), is "a dangerous road to go down." What about empathy "for the unborn?" he wondered. Graham thinks Obama would take back his vote on Roberts, had he another chance to consider it, saying, "I hope the Senate will treat his nominees better than he treated Bush's when he was in the Senate."
Kenneth Duberstein, the former Reagan White House chief of staff who helped guide Souter's nomination through the Senate for President George H.W. Bush, wondered how well Obama will, in the end, be able to resist the "pulls and tugs" of the liberal constituency groups. "With Supreme Court nominations, it's very difficult to have a do-over. You've got to get it right the first time."
That is why so much is at stake for Obama as he weighs this decision.