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In Replacing Souter, Obama May Turn to Court Outsider

May 4, 2009 at 12:00 AM EDT
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With Justice David Souter set to retire in June after more than 18 years on the bench, President Barack Obama is being given his first chance to shape the nation's highest court. Analysts discuss what traits and experience President Obama will be looking for as he looks to nominate a successor.

JIM LEHRER: Next tonight, what should President Obama look for in his nominee to replace retiring Supreme Court Justice David Souter?

Here to discuss that: Christine Harrington, professor of politics at New York University; and David Yalof, professor of political science at the University of Connecticut, author of “Pursuit of Justice: Presidential Politics and the Selection of Supreme Court Nominees.”

Professor Harrington, first, for the record, there are no official qualifications for Supreme Court justices, am I correct?

CHRISTINE HARRINGTON, New York University: Yes, the Constitution doesn’t stipulate any conditions to be on the court, other than being nominated by the president and confirmed with the advice and consent of the Senate.

JIM LEHRER: But as a matter of record — and particularly right now, of course — they’re all lawyers, right?


JIM LEHRER: Have they always been lawyers?

CHRISTINE HARRINGTON: Yes, they have always been lawyers, of course, not always law professors or federal judges. And that’s where the trends in who presidents pick start to break out.

JIM LEHRER: Professor Yalof, in the current court, the trend is already arrived, has it not, in terms of federal appeals court judges?

DAVID YALOF, University of Connecticut: Yes, scholars talk about a norm of judicial experience. It’s almost a norm of federal judicial experience. Once Justice Souter leaves the court, you’re left not only with almost all entirely people who have had federal judicial experience, but you’ve lost the one judge who had significant state judge experience in Justice Souter.

Many from Yale, Harvard

JIM LEHRER: How did that come about? What caused this? Because presidents of all parties seem to, when in doubt, pick an appeals court justice and promote him or her, correct?

DAVID YALOF: Well, actually, if you go back a half a century or more, quite often presidents looked way beyond the courts for possible...

JIM LEHRER: But I mean recently, they've -- what I mean is, what brought this -- how did we get here?

DAVID YALOF: Well, there's a couple of factors. It's kind of a perfect storm, if you will.

On one hand, recent presidents have wanted to, if not pack the courts with ideologically compatible judges, to at least certainly fill it and ensure that these nominees that they choose will be right on the issues that matter to them.

And I'm not sure it's entirely true, but I think there's a sense that the best possible gauge of how somebody might rule once they're a justice is in how they have ruled as a judge in a lower court, particularly a federal lower court, where they've seen a lot of the same issues. So that's one of the factors.

The other factor is, there's kind of an aura of confirmability. There's a sense that somebody who's already a federal court judge, especially a federal circuit court judge, already been confirmed by the U.S. Senate, very often a very similarly constituted U.S. Senate, already gone through the process, vetted by the media, vetted by everybody, and succeeded. And there's a sense that possibly senators are going to be very hard-pressed to now oppose somebody who was confirmed, possibly including their own vote.

JIM LEHRER: Professor Harrington, do you read it the same way, how we got to this point?

CHRISTINE HARRINGTON: Yes, I agree with David that, clearly, the desire to get through the Senate is critical. And where now President Obama has the chance of a filibuster-proof nominee in the Senate, his opportunity is to really break out of that.

In addition, as David pointed out, confirmability also is a kind of certainty that presidents of late have been looking for, but also how they ruled on lower court decisions. Of course, decisions that they were involved in, they usually recuse themselves of.

JIM LEHRER: But, Professor Harrington, there's also, isn't there, almost near solidarity in the current court Yale and Harvard, correct?

CHRISTINE HARRINGTON: Yes, well, that's pretty much where law professors and federal judges -- although Chicago and Stanford and perhaps even NYU come into the picture, and Columbia. But the institutional hold on the court that you've just described has been the case.

Politics in the law

JIM LEHRER: Now, back to -- not back to, but specifically to ideology, Professor Harrington, what does the recent history tell us? For instance, George W. Bush was a conservative. His last two Supreme Court justices that he appointed were conservatives.

Should we expect in an automatic way that Barack Obama will have people of like mind, political mind, political ideology mind when he makes his choice?

CHRISTINE HARRINGTON: Probably so, but what's important for viewers really to understand is that there's a politics in law itself. And while the outcome of the votes on the court may fall in line with shared political -- that is, partisan -- values of the president who appointed, what's really important, I think, at this point -- and a transformational point -- is to be aware that there is a politics in the law.

For example, instead of having the discussion in the opinion and then the dissent responding like-minded to the formalism of a doctrinal argument, what we need to get on the court are justices who have experience outside of the narrow doctrinal debates that have a political meaning inside that maybe only political scientists are aware of and we need to have justices that are drawing in new jurisprudences, new theories of law, not necessarily novel and new, but bringing some life back into what has become a bit of a dead-hand formalism on the court.

JIM LEHRER: Professor Yalof, dead-hand formalism on the court? Is that what we have now?

DAVID YALOF: Well, I think that's a risk, certainly. I think there's been a lot of criticism of the court, especially when they've had to deal with hot-button issues that deal with the American political system as a whole.

You think of Bush v. Gore. And would people have greeted that decision a little differently if there had been people on that court with kind of a feel for the political environment, people who had just been senators or had just been an attorney general, just been on a cabinet?

The fact was, these were mostly career jurists making that decision and the extent to which they're sensitive to those kinds of realities. Not only that kind of decision, when they struck down term limits as unconstitutional or when they decide to strike down the line-item veto as unconstitutional, not that that decision was wrong by any means, but the extent to which they're sensitive to how the other branches deal with things, that might be missing from the current court.

Demographic diversity is needed

JIM LEHRER: Professor Harrington, do you agree with that, that maybe it's time to bring other kinds of people into it, as well, not just jurists, not just -- particularly not just federal judges and appeals court judges, but other people, even people who've run for elective office?

CHRISTINE HARRINGTON: Certainly. And if you look at the period of the court when it made a major shift during the New Deal, President Roosevelt brought in governors, he brought in senators, he brought in former heads of the Security and Exchange Commission, Justice Douglas. He brought in people who not only had those different backgrounds in politics, but also had some committed interest, for example, in the regulatory area.

I think what David's talking about in terms of the court overturning decisions in Congress also speaks to what those statutes were about. When the Supreme Court overturned the Violence Against Women's Act on the grounds that it was not within the scope of Congress's authority to regulate under the commerce clause, it narrowed the conception of commerce such that concerns about the impact of domestic violence on a woman's chances of employment and an economy around her were cut off.

And it is exactly that kind of knowledge about commerce, the understanding of commerce in the contemporary sense of a full community wanting to work, that we need to bring to the court.

JIM LEHRER: Professor Yalof, that also brings up racial and gender diversity, does it not? In other words, the total human experience should be sitting among those nine people, is that what you're suggesting, as well?

DAVID YALOF: Well, absolutely. It's interesting to me the degree to which it's almost agreed upon by all sides of the political spectrum that demographic diversity is needed, that we need to think in terms of more women on the court, think in terms of racial diversity. That's almost a given.

We haven't been talking as much, at least in recent years, in recent periods, about political diversity, I mean, in terms of professional diversity. But I think about Brown v. Board...

JIM LEHRER: You mean professional -- I'm sorry, professional legal diversity, you mean?

DAVID YALOF: Right, what kind of experiences, career and otherwise, you bring to the court.

No trial lawyers on court

JIM LEHRER: Like people who've been trial lawyers, even? There are not any trial lawyers on there now, are there?

DAVID YALOF: That's right. Well, in some sense, John Roberts was a trial lawyer, in the sense that he was a litigator, but no one to the degree of Thurgood Marshall, who represented individuals being brought up on capital offenses.

That kind of personal experience in court representing somebody who's looking at the death penalty, wouldn't that be at least an important perspective to bring to the table at conference? And that's obviously completely not -- it's not there right now.

But I also think about Brown v. Board and demographic diversity. Back then, the issues were more South versus North. And there were members of the Supreme Court who were from the South: Hugo Black, Stanley Reed. How would the nation have greeted that particular decision if it had come from just Northerners?

And those kinds of issues continue to come up today. And you want to see different perspectives brought to the debate, even though those different perspectives may not always carry the day.

JIM LEHRER: All right, well, Professor Harrington and Professor Yalof, we'll see what President Obama decides. Thank you both very much.


DAVID YALOF: Thank you.