Editor's Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. -- Stuart Taylor Jr., May 5
Random thoughts on Justice David Souter, his expected retirement and next steps for President Obama:
• Souter was a stealth nominee when he was named by President George H. W. Bush in 1990 -- many liberals at the time denounced him as a closet right-winger, and he was privately touted as such by then-White House Chief of Staff John Sununu. Souter's fulsome praise of Justice William Brennan (whom he succeeded) at his confirmation hearing suggested that he might lean more left, and he has been consistently left of center since he got to the court.
He moved in his first few years from moderate-liberal to liberal -- most notably in joining the Sandra Day O'Connor-Anthony Kennedy-Souter swing opinion that reaffirmed (but slightly narrowed) Roe v. Wade in the big 1992 decision in Planned Parenthood v. Casey. Souter became a reliable member of the liberal bloc on every major issue and most, if not all, minor issues. The major issues -- abortion, race and affirmative action, presidential war powers versus civil liberties, gay rights, church-state issues and campaign finance. But unlike Harry Blackmun, and to some extent Warren Burger and John Paul Stevens, this is not a guy who started out conservative or centrist and then "evolved" -- he was never conservative.
• With such a big Democratic majority in the Senate, Obama could get just about anyone confirmed easily. But the Republicans could bleed him some politically if he made an exceptionally controversial pick.
• Obama would probably prefer to make a truly outstanding choice, and if possible a consensus choice. He will not see this as some exercise in political gamesmanship. He may also want to break the boring pattern of staffing the Supreme Court with cloistered appellate judges. He said during the campaign that he liked the Earl Warren model -- a big-time politician who can lead the court by force of personality and convictions.
• Obama has said he wants a Supreme Court justice to have empathy for the powerless; he voted against Justices John Roberts and Samuel Alito, accusing them of siding with the powerful. Obama is, of course, pro-choice on abortion and pro-civil liberties. But he applauded a conservative Second Amendment decision last June and assailed a liberal decision striking down the death penalty for raping a child. Both stances were widely seen as more politics than principle, but he may want to keep sounding the same political notes on the judicial front.
• Presidential war powers seems an especially interesting issue area to watch. Now that he's president -- and taking some of the same positions that George W. Bush took about his power to detain suspected terrorists without criminal charges -- Obama might like to reverse the 5-4 majority (which included Souter) that kept ruling against Bush in the Guantanamo cases. He could swing the court in his favor by replacing Souter with someone more pro-presidential-power. But as a general rule, such types often seem relatively conservative on social issues. So finding someone who is pro-president on war powers and liberal on social issues while also satisfying other criteria might be tricky. Hunch: Solicitor General Elena Kagan may be best bet on that, although she has not taken public stances on presidential powers.
• There is a big political premium on having a Hispanic -- ideally a woman -- especially because Obama is likely to disappoint those voters on immigration reform. Sonia Sotomayor, a federal appeals court judge based in New York, is by far the most prominent Hispanic female judge, but she has a problem first identified in my column last December on the New Haven firefighter reverse discrimination decision she joined (likely to be reversed by the Supremes), as discussed below.
• Other Hispanic women who come to mind (the bench is not that strong): Kim Wardlaw of the 9th Circuit; Vanessa Ruiz of the D.C. Court of Appeals (which is far less prestigious than the U.S. Court of Appeals for the D.C. Circuit).
• One Hispanic male whose name has come up so far is Ruben Castillo, a Chicago district court judge.
• Non-Hispanic possibilities include Kagan, a former Harvard Law School dean who is well respected by many conservatives, and whose views on many issues are not publicly known (a potential plus?); and 7th Circuit Judge Diane Wood, an exceptionally smart former law professor without obvious warts whom Obama knows from Chicago.
• Hillary Clinton? Probably wouldn't want it. Other long shots, all of them African-American women, that have been mentioned: Valerie Jarrett, a senior White House adviser and a longtime friend of Obama; Teresa Wynn Roseborough, a Clinton-era deputy assistant attorney general who is now in private practice; and Leah Ward Sears, chief justice of the Georgia Supreme Court.
• Cass Sunstein, the regulatory czar-nominee at the Office of Management and Budget and a brilliant legal scholar who knows Obama very well from the University of Chicago Law School, and Judge Merrick Garland of the D.C. Circuit would be great choices but for their two crippling disabilities (at least for Obama's first pick): race and gender. Judge David Tatel, the brilliant, sensibly liberal D.C. Circuit judge, has the same two disabilities and is much too old (67). He also happens to be blind.
• Sotomayor's problems: She apparently does not know Obama very well personally, if at all. There is a widespread perception on the right and among some moderates who have seen her close up that she is far more liberal than anyone now on the Court. Perhaps her biggest problem is her vote in the potentially huge Ricci reverse-discrimination case in New Haven that was heard at the Supreme Court last week. It was an extremely pro-reverse discrimination decision and appeared sneakily (if unsuccessfully) designed to escape notice. And the Supremes seem very likely to reverse it (probably 5-4, with Kennedy joining the conservative bloc), possibly with a good whack at the lower court decision. See below excerpts from my Dec. 13, 2008 column.
In their lawsuit, Ricci and his fellow plaintiffs claimed that the city, Mayor John DeStefano, and other defendants had violated their rights under the Constitution's equal protection clause and under federal civil-rights laws.
U.S. District Judge Janet Arterton of New Haven dismissed the case. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.
Arterton was appointed by President Clinton. So were the three 2nd Circuit judges who heard the initial appeal, including Sotomayor.... The three-judge panel initially deep-sixed the firefighters' appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.
Then the Circuit's more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote. All but one of the seven is a Clinton appointee. And all six of the dissenters were named by President George W. Bush or his father, with the exception of Jose Cabranes, a moderate Clinton appointee.
Writing for the six dissenters, Cabranes said that the majority "failed to grapple with the questions of exceptional importance raised in this appeal," and he urged the Supreme Court to do so. He also raised the question of whether the case involved "an unconstitutional racial quota or set-aside."
"At its core," Cabranes wrote, "this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"
Cabranes stressed that despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel's "perfunctory disposition" oddly contained "no reference whatsoever to the constitutional claims at the core of this case."
Five of the majority judges, including Sotomayor, retorted that New Haven's decision to discard the test results and deny what would otherwise have been virtually automatic promotions to the highest-scoring white and Hispanic firefighters was "facially race-neutral." The reason? Because none of the low-scoring, ineligible African-American firefighters was promoted either. These five judges also endorsed Judge Arterton's conclusion that the city's decision was justified by fears that promoting the high-scoring whites might violate Title VII of the 1964 Civil Rights Act and bring a discrimination suit by the low-scoring blacks.
Find Cabranes' dissent here (starts on p. 9 of this document).