CQ TODAY PRINT EDITION
– LEGAL AFFAIRS
May 4, 2009 – 7:42 p.m.
Obama Urged to Look Beyond Federal Appeals Courts in Replacing Souter
By Keith Perine and Seth Stern, CQ Staff
During a breakfast meeting at the White House in 2005, Vermont Democratic Sen. Patrick J. Leahy urged President George W. Bush to consider nominating an elected official to replace retiring Justice Sandra Day O’Connor on the Supreme Court.
O’Connor, a former Arizona state legislator, was the only member of the court who had held elective office before joining the Court and who had not been elevated from a federal appeals court. Despite Leahy’s urging, Bush nominated first one appeals court judge, John G. Roberts Jr., then another, Samuel A. Alito Jr. , to succeed O’Connor.
Once Alito’s nomination was confirmed in 2006, all nine justices came from federal appeals courts. That uniformity — a historical first — has lawmakers, academics and liberal activists urging President Obama to find his first Supreme Court nominee somewhere other than a federal appeals court.
Leahy, chairman of the Judiciary Committee, again voiced his desire for a non-judge during a May 2 interview on ABC’s “This Week.”
“I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge,” he said.
The Senate’s newest Democrat, Arlen Specter of Pennsylvania, echoed that sentiment on NBC’s “Meet the Press.”
“I would hope that he would look beyond the circuit courts of appeals which now populate the Supreme Court and pick someone with greater world experience and diversity,” said Specter, who, like Leahy, gave Bush similar advice at that 2005 breakfast.
“I don’t think these positions should be limited to appellate judges,” Judiciary Committee member Orrin G. Hatch , R-Utah, said Monday. “Some of the greatest justices barely ever walked into a courtroom” before joining the court, he said.
Even before Justice David H. Souter announced his retirement, liberal activists were calling for more civil libertarians, environmental lawyers and public defenders on the federal bench. Obama said in his May 1 comments on Souter’s retirement decision that he planned to “seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.”
Variety of Options
Legal experts say non-traditional candidates can provide just the sort of alternative perspectives Obama is seeking.
The president has several categories of non-traditional candidates to consider if he decides to add professional diversity to the court, each with its own precedent in court history.
He could name a politician, such as Democratic Govs. Jennifer M. Granholm of Michigan or Deval Patrick of Massachusetts, who would follow in the footsteps of Earl Warren, the governor of California tapped by President Dwight D. Eisenhower in 1953.
Obama could select a state court judge like Leah Ward Sears, chief justice of Georgia’s Supreme Court. That would be akin to Eisenhower’s 1956 selection of William J. Brennan Jr., a New Jersey Supreme Court justice, or O’Connor, a judge on Arizona’s intermediate appellate court chosen by President Ronald Reagan in 1981.
Or Obama could pick Elena Kagan, solicitor general and former Harvard Law School dean. Other academics he could choose include Kathleen Sullivan, former dean of Stanford’s law school, or Harold Hongju Koh, the former Yale Law School dean whose nomination as the State Department’s top lawyer is pending in the Senate.
But Jeff Sessions , R-Ala., discounted the importance of diversity of experience. “I think you start out with someone with real proven expertise in the area, somebody who’s been there, done that,” he said.
Sessions said Roberts was “as close as you come” to the perfect nominee, with experience as a litigator before the Supreme Court and as an appellate judge. “What’s wrong with those qualifications?”
The trend toward selecting Supreme Court nominees with experience as federal judges began during the Eisenhower administration, according to Lee Epstein, a Northwestern University law professor, following discomfort among senators with the court’s rulings on civil rights and communist subversion cases. But President John F. Kennedy nominated less-traditional candidates, including Byron R. White, a deputy attorney general, and Labor Secretary Arthur J. Goldberg.
The preference for appellate judges really took hold, said David A. Yalof, a University of Connecticut professor who has studied Supreme Court nominations, during the Reagan administration. With the exception of O’Connor, whom Ronald Reagan nominated to fulfill a campaign promise to pick a woman, that administration mined the appeals courts for conservative jurists.
Yalof says administrations often assume circuit judges are a known quantity and easier to move through the Senate because they have already been confirmed at least once.
Interest groups on both sides look to a nominee’s record as a federal appellate judge for insight on how they will rule on the Supreme Court. Liberals were concerned that Souter, who had served only briefly as a circuit judge, might be a stealth conservative. Conservatives were equally concerned about George W. Bush ’s choice of White House Counsel Harriet Miers, whose nomination was withdrawn.
But in a recent law review article she co-wrote, Epstein concluded that the benefits of picking nominees from the appeals courts are overrated. “They don’t lead to smoother confirmations, they’re not less ideological, and they’re no less likely to overturn precedent,” she wrote.
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