- The Washington Times - Saturday, May 2, 2009

President Obama said Friday he will look beyond traditional legal experience to fill the seat of retiring Supreme Court Justice David H. Souter — to someone who can relate to average Americans.

Putting another challenge on his already crowded desk, Mr. Obama said he wants to have a replacement sworn in by October. But his goal of a nominee with “empathy” has already sparked a battle with Republicans and others who say the Supreme Court should concern itself with judicial philosophy, not social outcomes.

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation,” Mr. Obama said.

Still, he also said he will look for someone who “who respects the integrity of the judicial process and the appropriate limits of the judicial role.”

While news of his intended resignation broke late Thursday, Justice Souter sent a message to Mr. Obama Friday saying he intends for it to become effective when the court finishes issuing opinions this summer. The court finished with oral arguments this week.

Nominated by President George H.W. Bush in 1990, Justice Souter resigns with a reputation of having been a reliably liberal but unremarkable vote on the court.

• See related story: Souter’s rulings not always predictable

Liberal interest groups said in replacing him, Mr. Obama must push for a judge who will look beyond the letter of the law to consider race, and vulnerability.

“He made the Supreme Court a major feature of his campaign and won a strong mandate in November. He has expanded upon his mandate in his first 100 days and should now make a bold choice for the Supreme Court,” said People For the American Way President Michael B. Keegan.

Many court watchers also predict Mr. Obama will nominate either a woman or minority to add diversity to the court. Among the names law scholars say are contenders are U.S. solicitor general Elena Kagan, the former dean at Harvard Law School, appeals court Judges Sonia Sotomayor and Kim McLane Wardlaw, and Harold Hongju Koh, a former dean of Yale University Law School.

Conservative and pro-life groups, however, have vowed a fight, and said they will put pressure on moderate Democratic senators not to accept a liberal justice.

“The next Supreme Court nominee must be asked whether they share the president’s decidedly activist view that judges should consider not just the law and facts, but also empathy for certain classes of people, including African-Americans, the poor, gays, and the disabled,” said Curt Levey, executive director of the Committee for Justice, which fights for conservative judges.

He sent a memo challenging Republican senators: “Do not roll over.”

Senate Minority Leader Mitch McConnell, Kentucky Republican, said Republicans will make sure the nominee is “thoroughly reviewed.”

“A Supreme Court nominee needs to be able to fulfill the judicial oath of applying the law without prejudice, and not decide cases based on their feelings or personal politics,” Mr. McConnell said.

Mr. Obama promised to consult with Republicans and Democrats on a nominee.

The president’s pledge to make empathy “an essential ingredient” in an eventual nominee is a stark departure from his predecessor, George W. Bush, who repeatedly said he was searching for someone who would apply the law.

As an example of how empathy matters, White House press secretary Robert Gibbs said it would be a judge who would have sided with the minority in the Lilly Ledbetter case.

In that case, a 5-4 majority ruled that the law gave Ms. Ledbetter a limited window to sue for pay discrimination, and she had waited too long. Justice Souter and the court’s other three liberal-leaning justices dissented, arguing the law unfairly constricted plaintiffs.

“When one discriminates against your pay, they don’t normally give you a 120- to 180-day heads-up that you’re being paid markedly less than your male counterparts are for the duration of your activities,” Mr. Gibbs said. “So I think having a justice that understands the ramifications of what each of those means is important and something that the president believes is important.”

The White House has been preparing for a possible resignation since Mr. Obama took office, and has already made several nominations to federal appeals courts, putting him well ahead of the timeline followed by Mr. Bush and President Clinton.

Republicans, however, are reeling. The ranking Republican on the Senate Judiciary Committee, Sen. Arlen Specter, announced this week he was switching parties, and the panel’s other Republicans have yet to regroup and choose their leader.

Mr. Specter’s switch also puts Democrats on the verge of having 60 senators, which is the magic number required to overcome a filibuster.

But if the confirmation vote does come to a filibuster, Mr. Obama’s own record will tie his hands in criticizing his opponents.

He voted against both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., and supported Democrats’ attempt to filibuster Justice Alito.

The court’s current composition includes Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas and Alito, all seen as conservatives; Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, seen as liberals along with Justice Souter; and Justice Anthony M. Kennedy, who is seen as a somewhat-conservative swing vote.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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