In replacing Souter, how far left will Obama go?
He'll face pressure from his liberal base in his pick for the Supreme Court.
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Given that the Senate Democratic caucus has just gained a new member – the party-switching Arlen Specter of Pennsylvania – and is likely to gain its 60th vote this summer, when Al Franken is expected to win the contested Minnesota Senate race, Obama has a strong hand to play when his nominee reaches the Senate for confirmation. Sixty votes are required to halt debate in the Senate, allowing a nomination to proceed to final passage.
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Two high-profile liberal female legal scholars being mentioned are Pamela Karlan, born in 1959, and Kathleen Sullivan, born in 1955. Both teach law at Stanford University in Palo Alto, Calif. Given all the other pressing issues currently before the president, however, he may decide that now is not the time to try to push through a nomination that would be especially contentious.
Obama will also face pressure to nominate the court's first Hispanic – a constituency that voted heavily for him last November. That points to Judge Sotomayor. But she may be vulnerable to prolonged and vigorous conservative attacks, because of her role last year on a three-judge appeals court panel that upheld the invalidation of a civil-service test because no black candidates scored high enough for a promotion.
The case was argued last week at the US Supreme Court, and a decision is expected by late June. Some analysts predict that Sotomayor and her colleagues will be overruled.
As for the prospect of a liberal Justice Scalia, time will tell.
"It's going to be hard to find people who are ideologically liberal versions of Scalia, because what that would mean, I suppose, is a Thurgood Marshall or a Bill Brennan, and American law has moved since the 1970s on a lot of issues," says Michael Dorf, a constitutional law professor at Cornell Law School in Ithaca, N.Y.
"I think it will be very hard to find someone on the liberal side who is an ideological liberal in the way that Scalia is an ideological conservative," Professor Dorf says. "Part of what people want is someone who is temperamentally a fighter in the way that Scalia is. Karlan is someone who fits that bill."
"It is hard to find people who are simultaneously ideological, witty, and charming. Scalia is all those things, but Karlan is also."
Already, the battle has been joined over Souter's replacement.
"Based on the appointments at the Department of Justice, it's clear that President Obama will name a Supreme Court nominee who will embrace an extremely liberal judicial philosophy," says Jay Sekulow, chief counsel for the American Center for Law and Justice. "There's no illusion here – President Obama is poised to reshape the nation's highest court."
Nan Aron, president of the liberal group Alliance for Justice, noted that a president's high court appointments influence the law long after the appointing president has left office.
"President Obama now has the opportunity to nominate someone worthy of his own historic legacy," she said in a statement. "The president can look to a broad array of legal talent to select a nominee who not only has an excellent record in the law, but also a respect for core constitutional values and a commitment to equal justice for all, not just a few."
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