Supreme speculation

Daily Beast:

A number of names have been put into play already based on the assumption that Ginsburg will be the first to tender her resignation. Nearly all observers expect Obama’s appointment to be a woman with solid experience either on the bench or in the Justice Department. Harvard Law School dean Elena Kagan, circuit court judges Sonia Sotomayor and Diane Wood, and law professor Kathleen M. Sullivan figure among the names most frequently cited. Kagan has just been named Solicitor General. In the current political environment, Obama may even offer some surprises as part of his effort to break the political logjam in Washington.

On the campaign trail, Obama was asked repeatedly what kind of judges he expected to appoint to the bench. His answers were carefully framed to avoid committing him too much, but they were revealing. He would not focus on individuals based on their academic or judicial pedigree, he said, but would instead pay attention to how their views would affect ordinary Americans. While ambiguous, this comment may point to candidates different in timber than the two Clinton-era justices, Ginsburg and Breyer—two liberal figures accepted by many on the right because of their disdain for judicial intervention.

Senator Orrin Hatch of Utah, then the leading Republican voice on the Judiciary Committee, claimed a measure of credit for both Clinton picks. Hatch pushed for justices from the “mainstream” rather than “doctrinaire liberals.” One of the issues facing Obama, who has recently touted his intention to govern from the center and reach out to Republicans, will be whether to follow the Clinton precedent—advocated by moderate Democrats like John Podesta (later Clinton’s chief of staff and now president of the Center for American Progress)—and allow leading Senate Judiciary Republicans to help shape his choices.

But a number of factors could weigh against such an approach. First, the Bush administration did not reciprocate by allowing Democrats influence in its Supreme Court picks, even when Democrats were in the majority. Bush picked John Roberts and Samuel Alito, candidates with a strong conservative movement orientation. Notwithstanding Clinton’s highly conciliatory approach, Republicans blocked approval of far more Clinton nominees to the federal bench than Democrats blocked approval of Bush nominees.

Second, public opinion now views the Supreme Court in particular and the federal bench in general as having drifted too far to the right. Polling also suggests that the public are tired of the hot button issues associated with prior Supreme Court picks (abortion and gay rights)—issues which in fact only very rarely figure on the Supreme Court’s calendar. Instead, public concern that the courts are failing to uphold “basic constitutional values” has soared to the front position. This concern may be linked to many issues, but most reflect a sense that the unilateral power of the presidency has grown at the cost of civil rights and liberties. The public today wants to see nominees who will be more protective of the rights of individuals than the two Bush era nominees.