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Senate Democrats' wish list for high court: Someone with non-Ivy background

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By Shailagh Murray and Paul Kane
Washington Post Staff Writers
Tuesday, April 13, 2010; 5:16 PM

While Senate Democrats have not rallied around any particular individual to replace retiring Supreme Court Justice John Paul Stevens, many do have one particular preference: a nominee who comes from outside the usual background of Ivy League law schools and federal court careers.

Their inclination is, in part, a reaction to the Supreme Court's recent decision in Citizens United v. Federal Election Commission, which served to allow unlimited campaign spending by corporations and unions. Democrats assailed the ruling as giving big companies the same First Amendment rights as individuals.

"Citizens United showed that when you get someone who's too ethereal, they miss the practical," said Sen. Charles E. Schumer (D-N.Y.), a senior member of the Judiciary Committee. "If you've had practical experience on the ground, in this case in politics, you know how destructive that can be."

Added Schumer, a graduate of Harvard Law School: "I've always liked someone with practical experience. I don't care where they go to school."

All nine current justices served in one of the nation's 12 circuit courts of appeal, before winning confirmation to the highest court in the land, and all but Stevens attended Ivy League law schools. (Stevens graduated from Northwestern's law school.)

Yale Law School claims three justices: Samuel A. Alito Jr., Sonia Sotomayor and Clarence Thomas. Four attended Harvard Law: Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and Chief Justice John G. Roberts Jr. Ruth Bader Ginsburg attended both Columbia and Harvard law schools.

One non-Ivy League contender, according to White House officials and top Democrats on Capitol Hill, is Judge Sidney R. Thomas, 56, a Montana native who serves on the 9th U.S. Circuit Court of Appeals. A native of Bozeman, Mont., Thomas is a 1975 graduate of Montana State University and a 1978 graduate of the University of Montana Law School.

"He's a level-headed guy. I can tell you, Sid Thomas is not elite. Sid Thomas is a regular guy," said Sen. Jon Tester (D-Mont.), who said he has met many times with the judge. Thomas served in private practice in Billings, Mont., until he was nominated by President Bill Clinton in 1995. He was confirmed by a Senate voice vote in January 1996.

Thomas is a close ally of Sen. Max Baucus (D-Mont.), who recommended him for the 9th Circuit vacancy. Baucus's former chief of staff, Jim Messina, is now deputy White House chief of staff.

"The country couldn't do better," said Baucus of Thomas. "He's so smart. He's so hardworking."

Baucus, a graduate of Stanford Law School, said that Thomas would restore the Western voice that the court lost with Justice Sandra Day O'Connor's retirement. "It's geographic balance," he said.

But Baucus said he hadn't aggressively pushed Thomas for the Stevens vacancy, figuring, "in Washington it's kind of wired as Harvard grads and Eastern elites who tend to get on the court."

Other senior Democrats also urged Obama to consider candidates with more varied résumés. "I hope that the president will pick someone not for the Republicans or the Democrats, but for the American people," Sen. Patrick J. Leahy (D-Vt.), who chairs the Judiciary Committee, told reporters.

Two possibilities apparently high on the White House's shortlist of nominees graduated from law schools outside the Ivy League: Judge Diane Wood from the University of Texas, and Homeland Security Secretary Janet Napolitano from the University of Virginia.

Nominating someone with such a state-school background would be revolutionary under recent traditions.

In the past three decades, five presidents have offered a dozen nominees to the Supreme Court; nine hailed from the Ivy League's law schools. The other three were O'Connor, who attended Stanford; Robert H. Bork, a University of Chicago grad; and Harriet E. Miers, who attended Southern Methodist University's law school. Bork, then a federal appellate court justice, and Miers, then the Bush White House Counsel, were not confirmed.


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