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Obama Expands on Criteria for New Justice

President Obama turns to Lilly Ledbetter, for whom the Lilly Ledbetter Fair Pay Act was named. In expanding on his criteria for a Supreme Court justice, he cited her case and said his pick will understand its practical implications.
President Obama turns to Lilly Ledbetter, for whom the Lilly Ledbetter Fair Pay Act was named. In expanding on his criteria for a Supreme Court justice, he cited her case and said his pick will understand its practical implications. (By Bill O'Leary -- The Washington Post)
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By Alec MacGillis
Washington Post Staff Writer
Sunday, May 24, 2009

President Obama said he is seeking a Supreme Court nominee who understands the "practical day-to-day" implications of rulings, as he pushed back in an interview airing yesterday against criticism of his emphasis on judicial "empathy."

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It is "important this is somebody who has common sense and somebody who has a sense of how American society works and how the American people live," he told C-SPAN, in his most extensive public comments yet on his deliberations since Justice David H. Souter announced his retirement.

While he said he is looking for someone with a firm grasp of the Constitution and its history, "what I want is not just ivory tower learning," he added. "I want somebody who has the intellectual firepower but also a little bit of a common touch and has a practical sense of how the world works."

Republicans have zeroed in on Obama's comments during the campaign that he would "want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through." They have said this is code language for judges who would apply an "activist" agenda not necessarily bound by constitutional constraints.

Obama stuck to the same language in the interview while seeking to expand its meaning: He wants a judge who can not only understand the lives of ordinary people, he said, but also grasp the practical consequences of rulings on businesses.

"I said earlier that I thought empathy was an important quality, and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you, but you have to be able to stand in somebody's else shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living," he said.

He cited the Lilly Ledbetter case, in which the court ruled in 2007 that a woman who had suffered pay discrimination, but discovered it after the window for filing suit had passed, could not sue her employer. "I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against," Obama said. "It doesn't make sense for their rights to be foreclosed. That's the kind of case where I want a judge not only to be applying the law in front of them but also to understand that as a practical matter."

He also noted the impact on businesses. "In some ways, it might cut the other way," he said. "I want a judge who has a sense of how regulations might affect the business in a practical way."

The comments could be interpreted any number of ways. One likely candidate, federal appeals court Judge Sonia Sotomayor, was raised by a single mother in a Bronx housing project and could be seen as having a common touch. Another federal appeals court judge on Obama's list, Diane P. Wood, has been praised by business groups for her grasp of business issues, despite her generally liberal profile.

Obama hinted that an announcement is imminent, saying he hopes to have confirmation hearings in July. "One of the things I would prefer not to see happen is that these confirmation hearings drag on, and somebody has to hit the ground running and then take their seat in October without having the time to wrap their mind around the fact that they are going to be a Supreme Court nominee," he said.

On another issue, Obama gave a definitive no when asked if the financial crisis in California would force a federal bailout for the state.

The most the administration would do, he said, is continue helping states with rolling over their debt in issuing new bonds. "We are talking to state treasurers across the country, including California, to figure out are there some creative ways that we can just help them get through some of these difficult times," he said.


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