The Washington Times - May 1, 2009, 12:35PM

While Justice David Souter’s retirement announcement may not come as a huge surprise and is unlikely to have as significant a philosophical impact as say a Robert Scalia retirement, it is raising more concerns than questions among conservatives about the balance of power.

Described as a moderate George H.W. Bush appointee who tends to vote with his liberal cohorts, conventional wisdom among many legal experts is that there won’t be much of a difference with Souter’s replacement - a liberal with a liberal. Yet that depends on just who’s picked and what the case is. Despite his leanings, experts say, Souter could generally be counted on to side with conservatives on many business and criminal cases before the court. So it is possible that the next justice could be left of left. While President Obama has yet to issue a formal statement on the matter, here’s what we do know about his Supreme preferences. 

1) His litmus test is empathy.

Confusing the role of judge and legislature, Mr. Obama will appoint judges who are “empathic” over Constitutionalists. Not one to be bogged down with what our Founding Fathers really meant, Obama told Planned Parenthood in 2007:

“I think the Constitution can be interpreted in so many ways.. We need somebody who’s got the heart - the empathy - to recognize what it’s like to be a teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled. That’s the criteria by which I’ll be selecting my judges.”

Damn those gutless, heartless, non-black (sorry, Clarence) justices currently serving on the bench! What do they know about the real world.

2) Speaking of Clarence, the president also gave us a glimpse of the kind of personalities (not decisions) he doesn’t like - people that he doesn’t think are as smart as him.

He dismissed away Justice Clarence Thomas, the court’s only black jurist (who grew up dirt poor), during a Q&A at the Saddleback Church Civil Forum when asked which existing Supreme Court justice would he have not nominated? He responded:

“I would not have nominated Clarence Thomas. I don’t think that he was as strong a jurist or legal thinker.”

His condescending tone insinuated that Thomas, who fits at least two of Obama’s previously mentioned criteria (black and poor; some might even argue old), still isn’t smart enough for him. This runs in stark contrast to remarks Obama felt “compelled” to make in 2005 opposing former President Bush’s D.C. District Court nominee, Janice Rogers Brown (another black conservative):

“The test of whether a judge is qualified to be a judge in not their intelligence.”

3) So let’s also add.. that the politics of loathing (black conservatives) will also play a part in Obama’s pick. 

4) To be sure though, tokenism will certainly make an appearance in the process.

There’s already talk of a woman, a minority or both getting the nod. Case in point: The 2-for-1 Latina Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals. In fact, she’s seems to be at the top of everyone’s list, including conservatives. 

Jay Sekulow of the American Center for Law and Justice, like most in the legal community, tells me he believes it is:

“A foregone conclusion that a woman and/or minority will be picked.” 

But here’s where the concern comes in. Sekulow points out that not only is Sotomayor left of Souter but in probability, even more so than the two most left leaning Justices Ruth Bader Ginsberg and John Paul Stevens. According to Sekulow, this would make Sotomayor’s selection:

“A galvanizing issue for conservatives and the Republican Party… [that could be] the beginning of the reshaping of the federal judiciary.”

While Souter proved more sympathetic to crime victims rather than the accused, pro-business and non-hostile to religious freedom, that’s not the case with Sotomayor (or someone like her.)  And at a mere 55 years of age, she’d have no less than three decades to do some serious damage. The most likely targets: Abortion, stem cells, expanded civil rights for criminals and the stiffening of church/state issues.

The nomination process could prove excoriating at best.

-Tara Wall is an editor at The Washington Times and editor of