Will Obama send a left-wing Scalia to the High Court?

Succeeding Souter. WSJ Editorial
Will Obama send a left-wing Scalia to the High Court?
WSJ, May 2, 2009

With Justice David Souter's announced retirement, a Democratic President will replace a Republican appointee to the Supreme Court. Normally, this would be a chance to alter the ideological balance of a closely divided Court. Justice Souter's replacement is unlikely to do that, but who President Obama does choose will tell us whether Mr. Obama's early move to the left on domestic issues is mirrored in his judicial picks.

Justice Souter was a relatively unknown jurist from New Hampshire who'd served on the First Circuit Court of Appeals in Boston for only three months before being selected by President George H.W. Bush in 1990. President Bush was presented with the rare chance to replace a retiring liberal giant in Justice William Brennan and create a new center-right majority.

But after the Robert Bork brawl three years earlier, Mr. Bush chose to look for a conservative with no paper trail that could trigger another confirmation fight. At the urging of his chief of staff, John Sununu, and New Hampshire Senator Warren Rudman, he settled on Judge Souter, who'd written no books, no appellate court opinions and one law review article. He was confirmed, 90-9.

In short order, Justice Souter was distancing himself from conservatives on the High Court. Most famously, he joined the 6-3 majority in the 1992 Casey ruling upholding Roe v. Wade. While he advertised himself as a believer in stare decisis, or Supreme Court precedent, Justice Souter nearly always found a way to join 5-4 majorities that overturned precedents he disliked. His nomination was a lost opportunity and one of President Bush's biggest failures -- and the precedent is one reason Republicans revolted against George W. Bush's nomination of Harriet Miers.

Don't expect President Obama to return the favor. Justice Souter, who is 69, is likely to be replaced by a much younger version of himself, even if it turns out to be a black, Hispanic or female version. The reported shortlist includes Elena Kagan, the former Harvard Law School dean and current Solicitor General; Second Circuit Court of Appeals Judge Sonia Sotomayor; Kathleen Sullivan, a professor and former dean of Stanford Law School; and Massachusetts Governor Deval Patrick. Let's just say that Justices Antonin Scalia and Clarence Thomas are in no danger of finding themselves with a new ally on the Court anytime soon.

Judge Sotomayor would be the High Court's first Hispanic justice and allow Mr. Obama to reward the Latino voters who helped elect him. The fact that she was appointed to the federal bench by the first President Bush could also be used to combat complaints that she's too liberal. But Judge Sotomayor's record deserves scrutiny, not least because she was part of a three-judge panel that declined to address the Constitutional issues at stake in the Ricci workplace discrimination case now before the Supreme Court; some speculate that she didn't want to reveal her views on such a controversial issue.

If Mr. Obama wants a centrist heavyweight, he could turn to Jose Cabranes, a Puerto Rican immigrant named to the Second Circuit Court of Appeals by President Clinton in 1994. But Democrats and liberal activists, who haven't had a Supreme Court pick since Justice Stephen Breyer 15 years ago, will be looking for a left-wing Antonin Scalia, a jurist who can forcefully articulate reliably liberal positions.

Elections matter. And right now President Obama may have the personal popularity and Senate votes to confirm almost anyone he wants. But Republicans still have an obligation to scrutinize his nominees, and that includes finding out whether they share the President's view that judges should consider more than just the facts of a case and the applicable law.

"We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenaged mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old," Mr. Obama said in 2007. "And that's the criteria by which I'm going to be selecting my judges." It's hard to imagine a more expansive view of a judge's role than that one.

Yet given everything else Mr. Obama wants to accomplish this year, he may not also want to risk a battle over a notably liberal Supreme Court nominee. Republicans might take some comfort in that, but not too much. Justice John Paul Stevens is pushing 90. This is unlikely to be Mr. Obama's only nomination.