Jeffrey Toobin wrote in The Nine, his definitive book on the
Supreme Court, that for the past several decades, "There were two kinds of cases before the Supreme
Court. There were abortion cases–and there were all the others." And now with Justice David Souter announcing
his retirement late last
week, it is the first time a pro-choice president has had the opportunity
to appoint a justice to the Supreme Court since Bill Clinton appointed
Stephen Breyer in 1994.
Souter has maintained a position as an ally of reproductive choice during
his time on the Court, despite the fact that he was appointed by President
George H.W. Bush in 1990. He voted in to uphold laws that maintained buffer
zones for protesters around abortion clinics and dissented in Planned
Parenthood v. Casey in 1992, a case that opened up states’ ability
to place restrictions on abortion. Most recently he dissented on the Court’s decision to uphold the partial
birth abortion ban. But Souter, despite defending abortion rights, recently
said he thought
it might be reasonable
for a principal to decide to strip-search a 13-year-old girl in an Arizona
school district in a recent case.
"At the certain point only women get women’s stuff," said
Ann Bartow, professor of law at the University of South Carolina and
administrator of the Feminist Law Professors blog. Her sentiments are
echoed by Joan Walsh in Salon, writing that, "no president has had a better
choice of female picks than Obama does."
Janet Crepps, deputy director of the U.S. legal program for the Center
for Reproductive Rights, said that while her organization would likely
not take a stance on whoever President Obama ends up nominating, "We
need someone who is not just a vote but a voice."
The lists of prospective nominees already circulated have a lot of pro-choice
women that top the list.
Sonia Sotomayor is currently a justice on the U.S. Court of Appeals
for the 2nd Circuit and a graduate of Princeton University and Yale
Law School. She was raised by a single mother in the Bronx housing project,
and, if nominated and confirmed, would be the first Latina on the
Court. Indeed, choosing someone like Sotomayor might help Obama fulfill
a campaign promise he made. While speaking at Planned Parenthood in
July 2007, Obama said of the standards used to evaluate justices,
"We need somebody who’s got the heart, the empathy, to recognize
what it’s like to be a young teenage mom. The empathy to understand
what it’s like to be poor, or African-American, or gay, or disabled,
or old. And that’s the criteria by which I’m going to be selecting my
Another sitting judge that has been floated as a potential nominee is
Leah Ward Sears, the first woman to serve as chief justice on the Georgia
Supreme Court and the first African American to serve in a Georgia high
court. She is a graduate of Cornell University and Emory Law School.
It’s hard to say, though, if Sears is just considered liberal for a
southern state like Georgia or if she would be a staunch liberal on
But there’s reason to caution the appointment of sitting judges. After
all, Souter was a sitting justice when he was named to the Supreme Court.
Although he was appointed by a fairly conservative president, he has
turned into a reliable liberal vote on the Court. "Souter wasn’t
who everybody thought he was," Bartow said. "The reverse could
Some view an academic as a safer choice, since they tend to have articulated a more extensive range of
public thoughts about judicial philosophy and constitutional interpretation.
Elena Kagan, who before her political appointment was dean of Harvard
Law School. She, as a former clerk for liberal lion Thurgood Marshall,
could be viewed as a strong liberal that Dahlia Lithwick has asked for. "If, then, we’re totting up all the
qualities the current court’s liberals ostensibly lack, we’d need to
blend boldness with passion and persuasiveness with volume and then
hope the next candidate also comes with some sort of just-add-water
Sweeping Constitutional Vision kit. Preferably this persuasive, passionate
constitutional bomb-thrower is also a woman, and, with any luck, an
African-American or Latina or Asian-American as well," Lithwick wrote.
Another academic that has been floated is Diane Wood, a lecturer at
the University of Chicago. She also served on U.S. Court of Appeals
for the 7th Circuit and at Department of Justice during the Clinton
administration. Additionally, Cass Sunstein has also been suggested.
He’s a prolific legal scholar who spent time at the University of Chicago
and is now at Harvard Law School. He has written for many left-of-center
publications in his time as an academic.
"Maybe I’m old fashioned, but I don’t see anything wrong with appointing
someone from the administration or political office," said Scott
Lemeiux, an assistant professor of political science at Hunter College
in New York and contributor to the blog Lawyers, Guns and Money. In
addition to Kagan, others have speculated that political leaders like
Massachusetts governor Deval Patrick or Michigan governor Jennifer Granholm
would be good choices.
Interestingly enough, as Lemieux said, historically "it’s been
Democrats and not Republicans who make the biggest deal about abortion."
It’s true that Arlen Specter, who switched to the Democratic party last
week, was the senator that lead the fight against overly conservative
justices during George W. Bush’s administration. "It seems unlikely
Republicans will put that much stock in. I’m not sure that’s going to
be the center of the battle." Lemeiux believes that other issues
may become more important to Republican senators, like the role of the
executive branch and its interaction with international law.
Still, once Obama selects the nominee, he will still have to have that
person confirmed. With potentially 60 Democratic votes, Obama may be blessed with a smooth confirmation process, but social conservatives
have already begun to object to the nomination process, despite the fact
that Obama refused to even discuss it at a press conference on Friday.
"It’s not going to be smooth because it doesn’t matter who the
candidate is," Bartow said. "It doesn’t matter who the person
is; they’re going to have a tough confirmation." Indeed, The
Hill reported that a coalition of more than 50 conservative
groups had formed on Friday, including the American Center for Law &
Justice, an anti-choice legal group that positions itself as the American
Civil Liberties Union for the right.
Ultimately, as Lemieux said, the nomination "depends on how much political
capital Obama is willing to spend."