By Robert Barnes and Michael D. Shear
Washington Post Staff Writers
Tuesday, May 12, 2009
Justice David H. Souter's departure from the Supreme Court gives the first African American president a historic opportunity to break another barrier by appointing the first Hispanic to the nation's highest court.
Those involved in the process inside the White House and those advising from outside say President Obama would relish such a choice. He studiously and successfully courted Hispanic support during the campaign and has maintained close ties to Latino leaders since coming to office.
But the White House is constructing its appointment strategy on the belief that this will not be his only appointment to the court and that he need not reach his goal of changing the racial, ethnic and gender balance on the court with just one pick.
Whatever selection Obama makes will emerge from a complicated political and legal calculation that pulls at competing elements of his presidency. The political landscape may never be more favorable for Obama to appoint whomever he most wants. His popularity is high and Democrats have firm control of the Senate, which considers the president's appointment.
But such conditions can be fleeting, and there is never a guarantee that more openings will materialize.
White House officials believe that Obama may get at least two more appointments. Justices John Paul Stevens, 89, and Ruth Bader Ginsburg, 76, are most often mentioned as possibilities to leave, though neither has given such an indication.
That would give Obama more freedom if he decided Judge Sonia Sotomayor or another Hispanic is not the right choice in the short term. He could appoint a woman this time, the thinking goes, and appoint a Latino or Latina later.
The pressure to name a Hispanic justice is building, with Hispanic legal groups calling -- ever so gently -- for the court's first Latino member. That call was backed up by the Congressional Hispanic Caucus, which told Obama that "appointing our nation's first Hispanic justice would undoubtedly be welcomed by our community and bring greater diversity of thought, perspective and experience to the nation's legal system."
Congressional aides said Obama's administration has been reaching out to Hispanic members in recent days to get their input on the president's choice. Obama aides have talked with the leaders of the Congressional Hispanic Caucus, Chairwoman Nydia M. Velázquez and Vice Chair Charles A. Gonzalez.
But both the White House and the groups are taking pains to avoid the perception that putting a Hispanic on the bench would be either a demand or a reward, and Obama advisers warned that pressure campaigns can caricature potential jurists as purely ethnic choices.
"Public lobbying campaigns might be more unhelpful than helpful," said one White House official who asked for anonymity to talk about the selection process. "At the end of the day, the president will decide based on the qualities that he outlined the day that Justice Souter announced his retirement."
The most prominent Hispanic candidate is Sotomayor of the U.S. Court of Appeals for the 2nd Circuit in New York. She is under serious consideration by the White House and would not only become the court's first Hispanic member, she would also meet Obama's goal of naming a woman.
It is unclear whether Obama has a relationship with her or knowledge about her jurisprudence. But she already has felt the glare that comes with being identified as a front-runner, with several unflattering profiles about her temperament and judicial accomplishments.
The Latino groups yesterday defended Sotomayor against what one called stories "assailing" her character.
"We are talking here about a woman who graduated from Princeton summa cum laude, went to Yale Law School, is an outstanding scholar," said Ramona Romero, president of the Hispanic National Bar Association. "We don't believe Judge Sotomayor requires any defense; we believe her record speaks for itself. We think she's one -- and I want to emphasize, one of many -- excellent candidates."
But the groups yesterday went out of their way to give the White House a wide berth, saying the philosophy and jurisprudence of the nominee matter most.
"It's not solely the mission of Hispanics for a Fair Judiciary that the next nominee be of Hispanic descent," said Estuardo Rodriguez, a founding member of the group. Foremost, he said, is whether someone who has "the understanding that civil rights is a given right."
"Would there be a disappointment in the community" if Obama does not choose a Hispanic, asked Gabriela Lemus of the National Hispanic Leadership Agenda. "I would say so."
But she added: "We're politically mature enough to know there's going to be another chance."
Romero disputed the notion that Obama might not enjoy the luxury of a wide array of Hispanics qualified for the job. "If this argument ever had any merit, it does not any longer," she said.
The groups said there was a list of 82 Hispanic judges on the federal bench and state courts of last resort that the president could draw from if choosing from the traditional venues for a nominee -- all of the justices on the current court are former federal appeals judges.
But the pool is shallower than that. The list produced by the groups yesterday is bipartisan, and because it has been eight years since a Democratic president appointed judges, the appellate bench is also thin for potential Democratic nominees.
Of the seven Hispanic appeals court judges appointed by Democrats, only Sotomayor and Judge Kim McLane Wardlaw of the 9th Circuit in California are younger than 60. There are only 15 Hispanics at the district court level appointed by Democratic presidents, compared with 33 appointed by Republicans.
Judge Ruben Castillo of the Northern District of Illinois, a member of the U.S. Sentencing Commission, is also mentioned as a possibility. New York's Democratic senators, Charles E. Schumer and Kirsten Gillibrand, sent Obama a letter recommending either Sotomayor or Interior Secretary Ken Salazar, the former senator from Colorado. Salazar would be a wild card who would change the makeup of the court by adding an experienced politician to the mix. Administration officials say other names that have not been mentioned publicly are also on their list.
Sotomayor, with a compelling life story of growing up poor in public housing in the Bronx, has long been thought to be a front-runner for the job. Former Yale classmates, law firm colleagues and former clerks say she is the embodiment of the characteristics Obama has said he is looking for: a qualified nominee with legal and real-world experience, as well as an appreciation for the impact of court decisions on everyday life.
But detractors have said she can be short-tempered and tough on the bench.
The remarks about Sotomayor in the Almanac of the Federal Judiciary, where lawyers are quoted without name, are tougher than those about two other appeals court judges who are mentioned among those Obama might consider for the job, Diane P. Wood and Ann C. Williams of the U.S. Court of Appeals for the 7th Circuit, and some who are advising Obama on the choice say the perception that she does not work well with others is one Sotomayor would have to overcome.