By Scott Wilson and Robert Barnes
Washington Post Staff Writers
Wednesday, May 6, 2009
President Obama's first selection of a Supreme Court justice is being managed by a small group of senior advisers, and the process will last at least into next week before producing a candidate who the administration hopes will inject real-world experience into the nation's highest court.
Administration officials said this process will be careful and deliberative, even though preparations to fill a possible Supreme Court vacancy began even before Obama took office. The advisers are gathering recommendations from congressional leaders and determining what criteria will count most in narrowing the field of candidates to replace Justice David H. Souter, whose retirement creates the first of perhaps three vacancies before the end of Obama's term.
The selection of a small and very senior group of administration officials to help manage the nomination is designed, in part, to avoid the kinds of leaks that angered several Cabinet nominees during Obama's transition. It departs from a decision-making process that on other important issues has involved a wider range of people inside and outside the West Wing, although the circle will grow once a choice is made and the center of gravity moves to Capitol Hill.
As White House officials dismissed speculation yesterday that Obama could name a nominee as early as this week, Souter bade a sentimental goodbye to the judges of the U.S. Court of Appeals for the 3rd Circuit gathered in Philadelphia, telling them that a jurist's satisfaction comes "not in the great moments but in being part of the great stream."
During a sometimes emotional 15-minute speech, Souter said the value of judges does not come from the "error-free trial, the perfect decision" or the opinion so good it "should get in the case books by next year," saying those things "sink in the stream pretty quickly." Instead, he said, it comes from being part of the continuing process and being "members of a great guild."
"The law replenishes its people as it replenishes its cases," he said.
Administration and congressional officials say Obama, who taught constitutional law for years, will take a much more hands-on role than his predecessors have.
He has indicated that he wants a candidate who has a less traditional résumé, in order to bring diversity to a high court now filled entirely by former appellate court judges.
As White House press secretary Robert Gibbs put it, Obama is looking for "somebody who understands how being a judge affects Americans' everyday lives."
Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it.
One possible candidate for the seat, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, appeared to walk close to that line in a video that emerged yesterday. Sotomayor would be the first Latino and the third woman to serve on the high court.
Speaking at Duke University in 2005, Sotomayor said, "All of the legal defense funds out there, they're looking for people with court of appeals experience" because "the court of appeals is where policy is made."
She then sought to soften the statement, adding lightly, "I know this is on tape and I should never say that, because we don't make law, I know. Um, okay. I know. I'm not promoting it, I'm not advocating it." The audience laughed as she brushed off the statement, perhaps sarcastically.
The tape surfaced amid rising criticism of Sotomayor, perhaps a target because she is seen as a front-runner. Some lawyers who have practiced before her have complained of a domineering presence on the bench, and a lawyer who has been consulted on the Obama selection process but is not involved in compiling the list of candidates said Sotomayor may have to overcome a perception that she "doesn't play well with others."
Senate Republicans, facing a near-filibuster-proof Democratic majority, will have only marginal influence over this selection. With Sen. Arlen Specter's defection to the Democratic Party, Republicans officially ratified Sen. Jeff Sessions (R-Ala.) yesterday as the ranking minority member on the Judiciary Committee, which will hold hearings and cast the first vote on the nominee.
The lawyer who has been consulted by the administration said that if the candidates were divided into groups representing the judiciary, academia and politics, the likely front-runners would be Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit; Elena Kagan, Obama's solicitor general and the former dean of Harvard Law School; and Michigan Gov. Jennifer M. Granholm (D), a Harvard Law graduate whose background running a large state dealing with severe hardship may qualify as the experience Obama is seeking.
In Philadelphia, many lawyers and judges said Obama would almost certainly choose a woman for the post. "Nobody knows who the nominee will be," said one judge attending the conference, "but everybody knows her gender."
Obama wants his choice in place by the first Monday of October, when the next court term begins.
To make that deadline, the administration would have to name its candidate no later than July in order for Congress to take up the nomination, although many are urging a vote before the Senate leaves on its August break.
Vice President Biden will be a key part of the process. A former chairman of the Senate Judiciary Committee, Biden has long personal relationships with its leadership and an insider's sense of how the process works.
Running the selection are White House Chief of Staff Rahm Emanuel, counsel Gregory B. Craig and deputy counsel Cassandra Q. Butts, a classmate of Obama's at Harvard Law. Obama has reached out to Republican and Democratic Senate leaders, seeking their recommendations. But the chance that he would veer from his own list, which began taking shape in December, is slim.
Gibbs said yesterday at his regular news briefing that "we want to move this process along in a timely fashion," though he said a selection will not be made this week.
Barnes reported from Philadelphia. Staff writer Paul Kane contributed to this report.