One week after news of Justice David Souter’s retirement, the White House is said to have a short list of six, the vetting official and unofficial is under way, and conservatives and Republican senators are arming for an admittedly uphill battle.
NBC’s Pete Williams and NPR’s Nina Totenberg are credited with breaking the story on the evening of April 30. Judiciary Committee Chairman Patrick Leahy, D-Vt., later confirmed to NPR he heard it from Souter in March; the White House is said to have gotten word earlier in the week, prompting speculation the leak came from 1600 Pennsylvania.
Some observers suggested the leak was bad for the White House: more pressure from outside. More plausible: the White House is happy to have the news out to start floating names, gauge reaction, and be publicly seen to be consulting widely.
Obama made the announcement official May 1 by interrupting the regular White House press briefing right after talking with Souter on the phone. Obama said “empathy” is “an essential ingredient” for a nominee. Other criteria: “dedicated to the rule of law,” “honors our constitutional traditions,” respects the integrity of the judicial process and the appropriate limits of the judicial role.” Conspicuously missing: judicial restraint, strict construction.
Republicans wasted no time in attacking the president’s criteria. On “Meet the Press,” ex-Judiciary Committee Chairman Orrin Hatch, R-Utah, said empathy was a “code word” for liberal judicial activist. By midweek, Alabama’s staunchly conservative Jeff Sessions had been picked to be ranking member for the hearing. Sessions recalling the Judiciary Committee’s rejection of his nomination for the federal bench in 1986 told Politico that the committee needs to base any criticisms of Obama’s nominee “on a fair and honest statement of the facts.” .
Conservatives were also quick to start roughing up some of the presumed front-runners, including Judges Sonia Sotomayor (2d Circuit) and Diane Wood (7th Circuit) and Solicitor General (and ex-Harvard Law School dean) Elena Kagan. Judicial Confirmation Network’s Wendy Long labeled all three as “liberal judicial activists.” The hit on Sotomayor: ruling against the white firefighters in the New Haven case before the Supreme Court; being a “bully” on the bench. The hit on Wood: allowing use of RICO against anti-abortion protesters (twice overruled by Supreme Court). The hit on Kagan: seeking to bar military recruiters from campus because of “don’t ask, don’t tell” (rejected by Supreme Court). At Bench Memo, Ed Whelan seconded the critique on Wood, in two parts (May 4 & 5).
Sotomayor got a second and more significant roughing-up from the New Republic’s Jeffrey Rosen, who in the first of a promised series on potential nominees sized her up as overbearing and under-smart. Rosen’s piece prompted more favorable comments from Sotomayor admirers and a critical dissection from Talking Points Memo. Rosen responded by sticking to most of his critique, denying any use of deputy SG and Rosen brother-in-law Neal Katyal as a source, but concluding with the description of Sotomayor as “an able candidate.”
For their part, liberal groups such as People for the American Way and the Alliance for Justice were naming no names but urging Obama to name a justice who “will defend the rights of individual Americans against powerful government and business interests” (People For) with “a commitment to equal justice for all, not just a few” (Alliance for Justice).
One week into the process, ABC’s Jan Crawford Greenburg reported on her “Legalities” blog that the White House had sent questionnaires to a short list of six candidates, including Sotomayor, Wood, and Kagan. The other three names: unleaked for now. Greenburg says chief of staff Rahm Emmanuel likes the politics of picking Hispanic Sotomayor; unnamed “legal officials” are said to think Wood or Kagan would bring more “intellectual prowess” to the court’s liberal wing.
With virtually all speculation focused on female candidates, Slate’s Dahlia Lithwick and Hanna Rosin openly labeled Stanford law professors Kathleen Sullivan and Pamela Karlan as openly out lesbians and speculated about the sexual orientation of other unmarried women being mentioned: Kagan and Homeland Security Secretary Janet Napolitano. Sessions told Politico’s Jonathan Martin he would not be averse to a gay nominee.
As for timing, Souter said he will retire when the court “rises for the summer recess” (at the end of June) instead of waiting for a successor to be confirmed. Obama wants the nominee in place by the traditional First Monday in October. Even if vetting takes a few weeks, as seems likely, the Judiciary Committee has ample time to meet Obama’s schedule. Watch here for more.