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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; A03

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.

Payton said that could favor someone who has not served on the bench, since judges might be more protective of the judiciary's role.

An official involved in the selection process said that, by definition, Obama would want a justice who values the intent of lawmakers, although the official said there are few cases before the court that make that important.

"But going forward? Sure," the person said. "This is not about Obama's agenda as much as it is about his outlook."

Granholm said that Obama is "wise" to consider "people that have applied the laws that Congress enacts, that have seen their impact on people." Most candidates on Obama's shortlist have declined interviews; Granholm was considered by Obama last time but was not among the four finalists he met in person.

The divisive social interests that usuallysurround a Supreme Court nomination -- abortion, gun rights, affirmative action -- may become important this year.

But the major theme has become what Obama and Democrats refer to as the pro-corporation leanings of the conservative members of the court. Simon Lazarus, public policy counsel at the National Senior Citizens Law Center, noted that Democrats and liberal activist groups are remarkably in synch.

Last week, the Alliance for Justice released a report called "Unprecedented Injustice: The Political Agenda of the Roberts Court." Days later, People for the American Way followed with "The Rise of the Corporate Court: How the Supreme Court is Putting Business First."

The reports cite virtually the same recent Supreme Court decisions: Citizens United v. Federal Election Commission, which reversed decades of law to say the Constitution gives corporations and unions a free-speech right to spend from their treasuries to support and oppose candidates; Ledbetter v. Goodyear, which said a close textual reading of the law showed that a woman had waited too long to file suit about unequal pay; and other rulings that the groups say make it harder to prove discrimination against employers.

Lazarus said the groups are using the decisions to emphasize that conservatives on the court have become activists, "bending the law to favor the big guy over the little guy."

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), had laid the groundwork as well, with hearings to call attention to rulings that he has said "ignored the intent of Congress . . . oftentimes turning these laws on their heads and making them protections for big business rather than for ordinary citizens."

Republicans have not let the charges go unanswered. After meeting with Obama and Democratic leaders last week to discuss the procedure for filling the Supreme Court opening, Senate Minority Leader Mitch McConnell (Ky.) and Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee, warned against choosing a nominee thought to be in line with the president's political priorities.

Justices, they said in a joint statement, "should not enter the courtroom with preconceived outcomes in mind, or work to arrive at the preferred result of any president or political party. A Supreme Court justice must not be a rubberstamp or policy arm for any administration."

Some Republicans have specifically mentioned the constitutional challenges being filed by state attorneys general to the health care legislation as an area where senators will want to know the nominee has an open mind.

Stevens is the leader of the four justices who are consistent liberal votes on the court; any liberal pick Obama makes will not shake the court's ideological balance.

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