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Obama Begins to Scrutinize Potential Supreme Court Nominees

April 21, 2010 at 12:00 AM EDT
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As President Barack Obama reaches out to potential replacements for Justice John Paul Stevens on the bench, Gwen Ifill gets three points of view from legal experts on the politics behind the president's second nomination to the Supreme Court and the confirmation battle that is likely to ensue.
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GWEN IFILL: Now: President Obama launches his search for a new Supreme Court justice.

U.S. PRESIDENT BARACK OBAMA: You know, I think we have got some terrific potential candidates.

GWEN IFILL: The president offered that optimistic assessment as he gathered Senate leaders to discuss his next Supreme Court nomination.

BARACK OBAMA: I’m confident that we can come up with a nominee who will gain the confidence of the Senate and the confidence of the country and the confidence of individuals who look to the court to provide even-handed justice to all Americans.

GWEN IFILL: Court-watchers say the president’s short list has now grown to 10 potential nominees, among them, current U.S. Solicitor General and former Harvard Law School dean Elena Kagan, three federal appeals court judges, Diane Wood, Merrick Garland, and Sidney Thomas, and former Georgia State Supreme Court Chief Justice Leah Ward Sears.

Judiciary Committee Chairman Patrick Leahy said he hopes the new justice would tip the balance away from narrowly divided opinions.

SEN. PATRICK LEAHY, D-Vt., Judiciary Committee chairman: We have right now a very, very activist, conservative activist, Supreme Court. The number of decisions, whether it’s Ledbetter, Citizens United or anything else, have been decided on a one-vote margin.

I think this does not reflect the American people, but reflects more of a partisan agenda. I would hope that the president’s nominee can get us back away from that and reflect the American people.

GWEN IFILL: Republicans released a statement pledging to review any “nominee’s record diligently and respectfully.”

But the president indicated he is hoping to replicate the relatively smooth process that confirmed his last pick, Justice Sonia Sotomayor.

BARACK OBAMA: I think it’s very important, particularly given the important cases that may be coming before the Supreme Court, that we get this process wrapped up, so that a new justice can be seated and staffed and can work effectively with his or her colleagues in time for the fall session.

GWEN IFILL: The president’s choice could be announced next month. The court’s fall term begins in October.

For a broader look at the president’s choices and the face of the court to come, we are joined by Emma Coleman Jordan, professor of law at Georgetown University Law Center — she has helped the American Bar Association evaluate the records of past Supreme Court nominees — Tom Goldstein, an attorney, Supreme Court analyst and founder of SCOTUSblog.com, and Eugene Volokh, professor of constitutional law at UCLA Law School and publisher of the conservative blog The Volokh Conspiracy.

Welcome to you all.

Emma Coleman Jordan, the president said in that meeting in the Oval Office today that — he used the word confident like four times. He is confident in the Supreme Court. He’s confident in the Senate. He’s confident in himself.

Does he have reason to be?

EMMA COLEMAN JORDAN, professor, Georgetown University Law Center: Well, I think he does have reason to be. Justice Sotomayor’s confirmation process went relatively smoothly, with no real surprises or areas of distraction.

And, more importantly, he has a health care law. And, so, the Supreme Court nomination is not in the same category of politics as the health care law is. But, certainly, that success is something that would be in his mind as he goes forward to count the votes. And the issue will be counting the votes for the Democrats. Can he have a nominee with whom all of the Democrats are — in the Senate are going to be happy?

GWEN IFILL: Gene Volokh, let’s step back from the politics of it for a moment and talk about the issues which are on the table here. We know that we — this is a different circumstance than certainly when Justice Stevens was confirmed, and even different from when Justice Sotomayor was confirmed.

How — how is that?

EUGENE VOLOKH, professor of constitutional law, UCLA School of Law: Well, it is really about the politics.

The issue here is the politics, that here you have a — a Republican Party which thinks it has a good shot at making very substantial gains in November, possibly even flipping one or both chambers. You have got an administration that certainly doesn’t want that to happen.

Now, given the Republicans’ past statements that they’re not going to endorse filibusters, or that — or that they oppose filibusters of Supreme Court nominees — these are statements during the Bush administration — I don’t think the Republicans are going to filibuster.

I think it is pretty clear that the president is going to get the majority that he needs to get to get the person — the person confirmed. The real question is at what cost in November. To what extent will the Republicans being able to portray this, this candidate, as emblematic of the liberal Democrats being out of touch with the public on culture war type issues, such as same-sex marriage, such as National Day of Prayer, such as “under God” in the Pledge of Allegiance?

I don’t think they’re going to think that they will actually defeat the nomination this way. But I think they’re going to be trying to make the argument — makes perfect sense for them to do so — the argument that the administration is appointing somebody who is out of step with the American public.

And that’s what I think the administration is going to be thinking about when it is deciding whom to nominate. They want somebody as to whom those arguments will have the least possible traction.

All the options are very competent options. And they’re probably going to be quite liberal. The real question is, who is going to be — who could be sold at minimum political cost come November?

GWEN IFILL: Tom Goldstein, we heard the president was asked today about abortion, and he said he would not apply litmus — litmus tests, which now must be written in a book somewhere that every president has to say that at some point in this process.

Is Gene Volokh right that this will be about hot-button cultural issues, or are there other issues which the court is focused on which will influence the president’s thinking? I’m thinking about these free speech issues in cases we have been seeing lately.

TOM GOLDSTEIN, SCOTUSblog.COM: Well, I think we have to separate the question of the substance of the issues.

The president, as a constitutional law scholar, an accomplished lawyer, who knows a ton about these sort of issues, is invested in them, I think cares a lot about the substance.

As to the politics, it is certainly the case the administration wouldn’t do something that would generate a thermonuclear war in the Senate and make it easier for Republicans to make real progress in the midterm elections. But I think they did that by not putting the most liberal candidates on the table to begin with.

Stanford law professor Pam Karlan, very respected on the left, isn’t being talked about in the short list, for example. So, the group of people that they have, I think, they believe will not generate enormous controversy and wouldn’t generate significant political hay for the Republicans in the midterm elections.

GWEN IFILL: One of the issues which keep coming back, not only before the court, but just in general, on arguments in Washington is this issue of executive power.

And the court would have a lot to say about that. How much will that — or could that influence — I guess you’re not inside the president’s head — but how much could that influence the way the president decides, what fight he decides to pick on this?

EMMA COLEMAN JORDAN: There are so many issues that will come before this court, that executive power certainly is an important one.

And all of the short list nominees, the people who are being talked about as on that short list, are people who have a track record in various previous roles on executive power. So, he will be able to choose, if that is a high priority.

But I would like to say, there are some sleeper issues and some issues that ought to be considered, and I’m certain that the president and his advisers will be looking at those as well. And that is, every nominee presents the president with a chance to launch a narrative, a narrative that suits the times of the country.

And, so, we remember the story of Justice Thomas rising from Pin Point. We know about Ruth Bader Ginsburg and we know about a number of the other justices.

GWEN IFILL: Including Justice Sotomayor.

EMMA COLEMAN JORDAN: Sotomayor. Personal stories that suited the times of the economy.

Today, we are in deep economic pain, and the country is going through a period of dislocation because of the activities of Wall Street. There is likely to be cases that come before the court that are equally important to every person in the country that have to do with questions of economic responsibility and accountability.

A decision announced just today written by Justice Sotomayor is a decision in which the Countrywide Mortgage firm was collecting a debt, and they violated a provision of the Fair Debt Collection Practices act. The question there is whether or not the violation of that statute should have a mistake-of-law exception.

And without getting into more detail about that, that is a very important case, because foreclosures and the whole process of foreclosures are economic problems that are affecting the country.

And to the extent he has a chance to choose among a very qualified group of candidates for this nomination, he can choose personal narrative or their experiential legal experience narrative.

GWEN IFILL: Or he can choose, Gene Volokh, between confirmability and vulnerability. That’s a different way of saying that, perhaps. Which do you think — which side do you think he ends up on in this particular climate?

EUGENE VOLOKH: Oh, well, I think that he — whoever he is going to nominate, perhaps with very, very few exceptions, is going to be confirm — confirmable.

The real question is political vulnerability, to what extent this may undermine the Democratic Party for November, vs. long-term legacy. Whoever it is whom he appoints could be on the court for 20 years. In the case of somebody who is around 50, as some of the candidates are, could be on the court for 30 years or more.

And the question is, to what extent will he say, I want somebody who is going to have the liberal, probably, in his case, quite liberal legacy that I would myself prefer for a very long time, or do I appoint somebody who is going to come through and who is going to help the Democratic Party, or at least not hurt them much in November?

I think that’s the tradeoff. I think that’s a difficult tradeoff. But it is ultimately a political decision, as, in fact, appointments to the court generally are.

GWEN IFILL: Tom Goldstein, you wrote an article in February in which you predicted — I’m going to hold you to this now — you predicted that Justice Stevens would retire. You predicted that he would be replaced by a justice — by Solicitor General Elena Kagan, who is now at the top of everyone’s list. And you predicted she would be seated on this court in October.

Want to take any of that back?

TOM GOLDSTEIN: No, thank you. I think that that is probably where the betting money ought to lie.

We’re talking about somebody who…

GWEN IFILL: Why?

TOM GOLDSTEIN: Well, to Eugene’s point, she is not someone who has a track record that Republicans would use against her. She has a lot of respect, actually, from conservatives from her time on the Harvard Law School faculty, building up the conservative side of that faculty.

She has experience in building bridges between the left and the right. She is really respected, somebody who was the dean of the Harvard Law School.

What none of the candidates have — because I thought the professor’s point was excellent — what none of the candidates really have is that deep personal narrative and history that Sonia Sotomayor did you pointed out, that Justice Thomas did.

And, so, the president doesn’t yet, on his list, have someone who connects the narrative of kind of the concern about the court being too conservative, being out of touch with individuals, the Citizens United case being too conservative and too pro-corporation, to the eventual nominee.

Elena Kagan doesn’t solve that problem, but she does have a lot of other characteristics in her favor.

GWEN IFILL: If that is unaddressed, then who else on or off the list would you imagine could rise to satisfy that narrative question?

EMMA COLEMAN JORDAN: Well, I think the president has the opportunity and will probably focus on the dynamics of persuasion.

Who, among the potential nominees, is experienced in building bridges and persuading those who have a different point of view? Remember, the next justice is going to have the opportunity to persuade a swing justice, Justice Kennedy. And that is going to require both cognitive intellectual ability and interpersonal skills and a real deep mastery in history of the Supreme Court jurisprudence.

So, the dynamics of persuasion will be very important. And I think that candidates who lack one element — perhaps they don’t have the powerful narrative — but, if they have got that ability, proven track record, to persuade, I think that will be a strong point.

GWEN IFILL: We have a short moment here to ask you, Gene Volokh, for one final question. Are litmus tests dead?

EUGENE VOLOKH: Litmus tests are alive. They’re constant. Whatever presidents and senators might say, they apply them, because views on particular issues matter a great deal to those people who have a voice in it.

And there’s a lot of denial of it going on, but the fact is that a justice who has views on certain issues that are unacceptable to the president — excuse me — a potential justice — will not get nominated.

GWEN IFILL: Eugene Volokh, Emma Coleman Jordan, and Tom Goldstein, thank you all very much.

TOM GOLDSTEIN: Thank you.

EMMA COLEMAN JORDAN: Thank you.

EUGENE VOLOKH: Thank you.