Sensitivity to 'ordinary Americans' a key criterion of court nominees

By Robert Barnes and Anne E. Kornblut
Washington Post Staff Writers
Monday, April 26, 2010

The likelihood that health-care legislation and Wall Street reform will ultimately be decided in the Supreme Court underscores the importance of a new justice, with the White House and Democrats arguing that whoever replaces retiring Justice John Stevens will be key in moving the court to uphold laws protecting "ordinary Americans."

From the moment Stevens announced April 9 that he would leave the court, President Obama, Senate Democratic leaders and sometimes fractious liberal advocacy groups have united behind Obama's assertion that the new justice must be, like Stevens, someone who "knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

That thinking has continued even though none of the perceived front-runners on the list to replace Stevens would seem to embody Obama's requirement that the person have a "keen understanding of how the law affects the daily lives of the American people."

As the White House studies potential candidates, hoping to name the nominee in the coming days or weeks, the latest to assert the wisdom of looking outside the "judicial monastery" was Michigan Gov. Jennifer Granholm, who is on the list of approximately 10 candidates Obama is considering. Whether she and others who deal with "everyday people" offer something more important than judicial experience, Granholm said on CNN's "State of the Union" Sunday, is "obviously the president's call."

The build-up to the nomination marks a departure from Obama's previous ruminations on the court. Republicans so criticized his use a year ago of "empathy" as a characteristic important for a justice that reporters last week could not bait White House press secretary Robert Gibbs into even saying the word.

Also, the list of candidates he is thought to be considering most seriously does not yield a life story comparable to Justice Sonia Sotomayor's projects-to-Princeton story that Obama called "extraordinary" in nominating the court's first Latina.

The three believed to be under the most serious consideration at this point are Solicitor General Elena Kagan, a former dean of Harvard Law School; Judge Diane P. Wood, an intellectual who has served for 15 years on the U.S. Court of Appeals for the 7th Circuit in Chicago; and Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit, whose résumé is far closer to that of Chief Justice John G. Roberts Jr. than to Sotomayor's.

Orin Kerr, a law professor at George Washington University, poked fun at the "diversity" of the three front-runners in a posting on the conservative-leaning Web log The Volokh Conspiracy. He noted that they had clerked for liberal Supreme Court justices and worked in the Clinton administration. "Will Obama pick the former deputy assistant attorney general for the criminal division (Garland), the former deputy assistant attorney general for the antitrust division (Wood) or the former associate White House counsel (Kagan)?" Kerr wondered.

Christopher L. Eisgruber, the provost of Princeton University who has written a book about Supreme Court nominations, agreed that the résumés do not seem to match Obama's rhetoric.

"I can't square this circle right now, based on the criteria he has listed," Eisgruber said. "All three would be excellent Supreme Court justices, but it is a puzzle" how they relate to what Obama has said he wants.

But John Payton, president of the NAACP Legal Defense and Education Fund, said there is another way to interpret the president's remarks: that Obama is looking for someone who would show some deference to "the legislative branch's prerogative in making laws that they think are for the benefit of the country."

He listed proposed reform of the financial industry, the recently passed health-care bill, and attempts to regulate campaign finance as areas that raise constitutional questions and are of particular interest to the White House.

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