Could the White House be planning a surprise nominee for the Supreme Court? That is one question in the air as President Obama prepares to spend the weekend (May 16-17) considering a list of six or possibly more potential candidates to succeed retiring Justice David H. Souter.
Two news organizations reported largely overlapping lists of six purported “finalists” for the post, both including five women, all previously listed in speculation. But the White House also sought to confound speculators by insisting that some of those under consideration have not been publicly identified.
“The president does take some heart in knowing that in all of the lists that have been seen and produced, there hasn’t yet been one produced with the totality of names which are being considered,” White House press secretary Robert Gibbs said in the daily press briefing on May 12.
The lists reported by CNN and National Public Radio the next day both included the three presumed frontrunners for the seat: federal appeals court judges Sonia Sotomayor (2d Circuit, New York) and Diane Wood (7th Circuit, Chicago) and Solicitor General (and former Harvard Law School Dean) Elena Kagan. Also on both lists, two political figures: Jennifer Granholm, governor of Michigan, and Janet Napolitano, secretary of Homeland Security and a former Arizona governor and state attorney general.
CNN reported that the list of six also includes Carlos Moreno, a justice on the California Supreme Court, who like Sotomayor is of Hispanic descent. NPR identified Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, as the sixth of the finalists. All of these contenders are white, but at least two African Americans have been previously listed as possibilities: Leah Ward Sears, chief justice of the Georgia Supreme Court, and Deval Patrick, governor of Massachusetts.
Surprise has often been an element of presidential decisions on Supreme Court nominees. President Ronald Reagan stunned Court watchers in June 1986 by simultaneously announcing with no advance warning the retirement of Chief Justice Warren E. Burger, his selection of then-Associate Justice William H. Rehnquist to succeed Burger, and his plan to nominate then-Judge Antonin Scalia to take Rehnquist’s seat. Three years later, Souter himself acknowledged surprise when President George H.W. Bush chose him in July 1989, only three days after Justice William J. Brennan Jr.’s retirement.
More recently, President George W. Bush’s aides may have helped create suspense by spreading disinformation about a successor to retiring Justice Sandra Day O’Connor in July 2005. Throughout the afternoon of July 19, seemingly authoritative sources were reporting that the post was going to federal appeals court judge Edith Clement of New Orleans. At 9 o’clock, however, Bush presented John G. Roberts Jr. as his choice at a White House ceremony. Six weeks later, Bush wasted no time in nominating Roberts instead to be chief justice following Rehnquist’s death from cancer.
Obama met with Senate leaders to discuss the current vacancy on May 13, but the president mentioned no names, according to one of those who attended, Senate GOP Leader Mitch McConnell of Kentucky. Others in the 40-minute session included Majority Leader Harry Reid, D-Nev.; Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala.
McConnell and Sessions both told reporters that they urged the Democrats to allow a 60-day period after Obama’s announcement before launching hearings. Leahy’s response was noncommittal: “We'll work out a decent schedule. Let's get the nominee first.”
Without naming Sotomayor, many Hispanic groups and leaders were urging Obama to take the chance to name the first Hispanic to the high court. (Justice Benjamin Cardozo’s Portuguese ancestry had not been taken into account until recently.) But Sotomayor continued to be drawing critical attention. In the mix, as reported in The New York Times and elsewhere: videotaped remarks saying that federal courts of appeals (in contrast to district courts) are “where policy is made” and a 2001 speech with the comment that a judge’s sex and ethnicity “may and will make a difference in our judging.”
The Times also published a more favorable profile of Sotomayor, along with a Web posting of selected opinions. Earlier, the Times had similarly profiled Judge Wood and posted selected opinions on the Web.
Kagan, the third presumed frontrunner, was profiled in the Los Angeles Times. The headline said she had “admirers left and right” for what the story described as her success in “bridging the ideological divide” as dean of Harvard Law School.
A nomination is widely expected by the end of the month. On the PBS “NewsHour,” senior adviser David Axelrod said he expected Obama to announce his choice “sooner rather than later.”