Jeffrey Toobin wrote in The Nine, his definitive book on the Supreme Court, that for the past several decades, "There were two kinds of cases before the Supreme Court. There were abortion cases--and there were all the others." And now with Justice David Souter announcing his retirement late last week, it is the first time a pro-choice president has had the opportunity to appoint a justice to the Supreme Court since Bill Clinton appointed Stephen Breyer in 1994.
Souter has maintained a position as an ally of reproductive choice during his time on the Court, despite the fact that he was appointed by President George H.W. Bush in 1990. He voted in to uphold laws that maintained buffer zones for protesters around abortion clinics and dissented in Planned Parenthood v. Casey in 1992, a case that opened up states' ability to place restrictions on abortion. Most recently he dissented on the Court's decision to uphold the partial birth abortion ban. But Souter, despite defending abortion rights, recently said he thought it might be reasonable for a principal to decide to strip-search a 13-year-old girl in an Arizona school district in a recent case.
"At the certain point only women get women's stuff," said Ann Bartow, professor of law at the University of South Carolina and administrator of the Feminist Law Professors blog. Her sentiments are echoed by Joan Walsh in Salon, writing that, "no president has had a better choice of female picks than Obama does."
Janet Crepps, deputy director of the U.S. legal program for the Center for Reproductive Rights, said that while her organization would likely not take a stance on whoever President Obama ends up nominating, "We need someone who is not just a vote but a voice."
The lists of prospective nominees already circulated have a lot of pro-choice women that top the list.
Sonia Sotomayor is currently a justice on the U.S. Court of Appeals for the 2nd Circuit and a graduate of Princeton University and Yale Law School. She was raised by a single mother in the Bronx housing project, and, if nominated and confirmed, would be the first Latina on the Court. Indeed, choosing someone like Sotomayor might help Obama fulfill a campaign promise he made. While speaking at Planned Parenthood in July 2007, Obama said of the standards used to evaluate justices, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
Another sitting judge that has been floated as a potential nominee is Leah Ward Sears, the first woman to serve as chief justice on the Georgia Supreme Court and the first African American to serve in a Georgia high court. She is a graduate of Cornell University and Emory Law School. It's hard to say, though, if Sears is just considered liberal for a southern state like Georgia or if she would be a staunch liberal on the court.
But there's reason to caution the appointment of sitting judges. After all, Souter was a sitting justice when he was named to the Supreme Court. Although he was appointed by a fairly conservative president, he has turned into a reliable liberal vote on the Court. "Souter wasn't who everybody thought he was," Bartow said. "The reverse could happen."
Some view an academic as a safer choice, since they tend to have articulated a more extensive range of public thoughts about judicial philosophy and constitutional interpretation. Elena Kagan, who before her political appointment was dean of Harvard Law School. She, as a former clerk for liberal lion Thurgood Marshall, could be viewed as a strong liberal that Dahlia Lithwick has asked for. "If, then, we're totting up all the qualities the current court's liberals ostensibly lack, we'd need to blend boldness with passion and persuasiveness with volume and then hope the next candidate also comes with some sort of just-add-water Sweeping Constitutional Vision kit. Preferably this persuasive, passionate constitutional bomb-thrower is also a woman, and, with any luck, an African-American or Latina or Asian-American as well," Lithwick wrote. Another academic that has been floated is Diane Wood, a lecturer at the University of Chicago. She also served on U.S. Court of Appeals for the 7th Circuit and at Department of Justice during the Clinton administration. Additionally, Cass Sunstein has also been suggested. He's a prolific legal scholar who spent time at the University of Chicago and is now at Harvard Law School. He has written for many left-of-center publications in his time as an academic.
"Maybe I'm old fashioned, but I don't see anything wrong with appointing someone from the administration or political office," said Scott Lemeiux, an assistant professor of political science at Hunter College in New York and contributor to the blog Lawyers, Guns and Money. In addition to Kagan, others have speculated that political leaders like Massachusetts governor Deval Patrick or Michigan governor Jennifer Granholm would be good choices.
Interestingly enough, as Lemieux said, historically "it's been Democrats and not Republicans who make the biggest deal about abortion." It's true that Arlen Specter, who switched to the Democratic party last week, was the senator that lead the fight against overly conservative justices during George W. Bush's administration. "It seems unlikely Republicans will put that much stock in. I'm not sure that's going to be the center of the battle." Lemeiux believes that other issues may become more important to Republican senators, like the role of the executive branch and its interaction with international law.
Still, once Obama selects the nominee, he will still have to have that person confirmed. With potentially 60 Democratic votes, Obama may be blessed with a smooth confirmation process, but social conservatives have already begun to object to the nomination process, despite the fact that Obama refused to even discuss it at a press conference on Friday. "It's not going to be smooth because it doesn't matter who the candidate is," Bartow said. "It doesn't matter who the person is; they're going to have a tough confirmation." Indeed, The Hill reported that a coalition of more than 50 conservative groups had formed on Friday, including the American Center for Law & Justice, an anti-choice legal group that positions itself as the American Civil Liberties Union for the right.
Ultimately, as Lemieux said, the nomination "depends on how much political
capital Obama is willing to spend."
