April 29th, 2010
04:50 PM ET
4 years ago

White House begins finalizing list of high court candidates

The White House has begun to finalize the list of high court candidates.
The White House has begun to finalize the list of high court candidates.

Washington (CNN) – The White House has begun finalizing its list of potential nominees for the upcoming Supreme Court vacancy, with many senior administration officials privately urging the president to name someone with a proven, "reliable" liberal record, according to sources closely involved in the selection process.

It comes as President Barack Obama has expressed renewed alarm over what he called "activism" by conservative judges, saying part of his criteria in selecting the next person to sit on the high court will be "judicial restraint."

White House officials have been quietly holding small, informal meetings this week with progressive groups, discussing candidates for the court and political issues that could be raised during the Senate confirmation process.

Government sources say top Obama aides have been getting an earful from liberals, who want to ensure a strong voice from the left is chosen, not a so-called "compromise" choice that could ensure a smoother confirmation this summer. They worry a nominee perceived as having a moderate-liberal record could lock Democrats into a position of never being able to win approval of future Obama judicial and executive branch nominees with more liberal views.

"There is the concern this White House may not want a political fight over the court in an election year," said one liberal activist who has talked with administration officials about the pending vacancy. "And we expressed our belief that this is a lifetime appointment, the issues she - or he - will decide are monumental, and now is not the time to think small, or think safe."

One issue that has raised particular red flags on the left is executive power, and whether Obama has done enough to reverse the scope of anti-terror policies from the Bush administration dealing with detaining and prosecuting suspects. Some human rights groups say the current president and his aides have in some cases been too eager to embrace an expansive view of unilateral power.

"It's going to be a challenge for the Obama administration to appoint someone, frankly, we think will do the right thing and stand up for
constitutional rights," said Vincent Warren, executive director of the Center for Constitutional Rights, which has defended dozens of foreign prisoners held at the Guantanamo Bay prison.

"The difficulty is that we'll likely see justices being appointed as a political compromise," he said, "and that's not the long view the Obama
administration should be standing for, and that's frankly a capitulation to the petty politics that are happening in Washington while we have some of the gravest constitutional issues at stake in balance.

About 10 candidates remain on the "short list," which is now being pared down to about three or four finalists. The president is expected to formally meet with those finalists, a step that is often one of the last taken before making his decision. He may already have met privately with a few, but White House officials have been very tight-lipped on the schedule. They do say Obama has informally spoken with some candidates by phone in recent days.

The person selected, if confirmed by the Senate, would fill the seat occupied for 35 years by retiring Justice John Paul Stevens.

Sources with knowledge of the internal vetting process say the focus remains on three people: Solicitor General Elena Kagan; federal appeals judge Diane Wood, based in Chicago; and federal appeals judge Merrick Garland, who works in Washington.

Kagan is believed by many to be the leading candidate, but her lack of judicial experience and her work defending the administration's anti-terror policies worry some progressives.

"There's a real concern about Solicitor General Kagan with respect to national security issues," said Warren. "I certainly can't see anything that
would lead me to believe that she would have a less expansive version of what executive power is than, certainly, the current form, and certainly with respect to how George Bush viewed it. So I think there's a real concern for human rights groups, if Elena Kagan is on the court, how that Supreme Court would know expansive and illegal executive power when they see it, and what they would be able to do about it."

Other liberal advocacy groups have praised her intellect, long government experience, and outspoken support of expanded rights for homosexuals.

Abortion rights groups have privately expressed support for Wood, who sits on the 7th U.S. Circuit Court of Appeals in Obama's hometown. They know each other from part-time teaching stints at the University of Chicago Law School. She has issued opinions viewed by liberals as favorable to abortion rights.

NARAL Pro-Choice America, in an e-mail to supporters, urged them to tell the White House to name someone with a firm commitment to abortion rights, "a fair-minded individual who, like Justice Stevens and the majority of Americans, supports the constitutional right to privacy as reflected in Roe."

Wood and Kagan were finalists for the Supreme Court opening last year, and were interviewed for the job by the president before Justice Sonia
Sotomayor was chosen.

Conservative groups for their part are prepared for a political fight, and presume the president will make a "liberal" choice for the bench.

"The president and the Democratic Congress have spent the last year or so pushing through a lot of legislation that people are getting very upset about - the health care legislation, the bailouts, the buyouts - and he's spent the time, as well, almost viewing the constitutional question to this legislation almost as an inconvenience," said Carrie Severino, chief counsel for the Judicial Crisis Network. "Now we're concerned that he might be appointing a Supreme Court nominee who would take the same view and kind of rubber stamp the policies that he's made."

Obama told reporters Wednesday that he opposes judges who "ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically."

During his January State of the Union address, the president openly slammed the conservative high court majority - some of whom were in the audience - for a recent ruling making it easier for corporations to spend greater sums of campaign cash in federal elections.

This week, he noted many liberal judges in the 1960s and 1970s were accused of an activist approach to legal interpretation.

"What you're now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error," he said. "And so I'm not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that the concept of judicial restraint cuts both ways."


Filed under: President Obama • Supreme Court • White House
soundoff (18 Responses)
  1. Odalice feliz

    Very hard Job, but someone has to do it!!!!

    April 29, 2010 04:56 pm at 4:56 pm |
  2. anagram_kid

    I am so glad we have an intelligent reasonable person at the helm making these critical decisions. I have no doubt this latest appointment will provide an opportunity for many Republicans members of congress to demonstrate that they are neither of these things. My hope is that they will accept the fact that the majority rejected the direction our country was headed and work with our president to continue to move us all forward.

    April 29, 2010 05:16 pm at 5:16 pm |
  3. Steve (the real one)

    Look, this is real simple. The President selects a nominee and the Senate votes to confirm or not. Liberals select liberals and conseravtives select conservatives. Real simple. Some of us will not like the liberal choice but, that is the President's right! At the same time, the next Republican Presiden't will have their opportunity to choose and the liberals won't like it either, and the beat goes on! Some liberal will reply that there won't be a next Republican President! Don't bet against it! Politics is cyclical

    April 29, 2010 05:19 pm at 5:19 pm |
  4. kat

    I'm sure he'll select another liberal nut!

    April 29, 2010 05:33 pm at 5:33 pm |
  5. New Age Independant

    anagram_kid. And I'm sure you were saying the exact same thing when the last Republican President chose a Supreme Court Justice. I'm betting not; that your rant is merely liberal hypocrisy. Obama tried to run as a moderate, although his record clearly shows him to be a liberal. Most likely this will only solidify his standing as a liberal.

    April 29, 2010 05:38 pm at 5:38 pm |
  6. Hows that oil slick coming along drillers?

    Lets have fun and really tweak the rightwing dingbats noses.hahaha

    April 29, 2010 05:41 pm at 5:41 pm |
  7. floridian

    The decisions of the Supreme Court should be based on the Constitution, which in my humble opinion, IS NOT a living document but one crafted oh so many years ago by God-inspired patriots. The problem with this President's criteria for a justice of this third part of our government is that he wants someone who will interpret the Constitution with "feelings" for this age/generation. I read that to mean someone who will decide based upon the impact on the people rather than what the Constitution says. He says we do not need "activists" judges, but that is exactly what his criterai is. Say one thing and do another - his strong point.

    April 29, 2010 05:51 pm at 5:51 pm |
  8. Sandra, ATL

    If anyone thinks that Alito and Roberts are not activitist judges, they are truly delusional. I don't trust either one. Activisim runs both ways and I get truly nauseaous when I hear the right wing talking about Democrats advocating 'activist' judges. That is truly the pot calling the kettle black. It's not activism is they agree with their ruling.

    April 29, 2010 05:52 pm at 5:52 pm |
  9. Conservative Democrat

    You don't pick a Liberal. You don't pick a Conservative. You pick an American who believes in the Constitution as it was written, not from some ideological point of view. You pick someone who is going to make decisions based on what the Constitution says, not what some political party wants them to do.

    April 29, 2010 06:01 pm at 6:01 pm |
  10. Henry Miller, Libertarian

    "...with many senior administration officials privately urging the president to name someone with a proven, "reliable" liberal record,..."

    By which they mean, of course, a far-left neo-socialist, or whatever it is you call Obama's politics.

    April 29, 2010 06:11 pm at 6:11 pm |
  11. Obama the liar

    he choices have been approved by Fidel and Hugo..

    April 29, 2010 06:13 pm at 6:13 pm |
  12. once upon a horse

    and the Repubs are already trying to come up with reasons to dislike the candidate even though they haven't been chosen yet. In fact President Obama could pick a far religious right white male neo con and the GOP would STILL find something wrong with him.

    April 29, 2010 06:23 pm at 6:23 pm |
  13. Leah

    I am still hoping that Harold Koh will end up on the short-list and that he will be the next Supreme Court Justice.

    April 29, 2010 06:27 pm at 6:27 pm |
  14. Walter

    For you people who think that the Constitution was God-inspired, I doubt very much that God ever thought of blacks as three-fifths of a person.

    And as for not interpreting it to meet the demands of new circumstances, the Constitution does not authorize and air force.

    The document changes, both through revision and through the unavoidable process of applying it to circumstances that it did not and could not have anticipated.

    April 29, 2010 06:28 pm at 6:28 pm |
  15. LC in CA

    Once again into the breech... I hope the next justice is selected on merit, and not on party politics. The three branches of government are supposed to be independent, not chosen on ideology, party affiliation, or bias. Supposed to be. The current conservative majority has been bending the laws to endorse their collective agenda for years. May the best qualified person win. Thank heaven Obama is at the helm, and not a Bush, or a Palin, or a McCain.

    April 29, 2010 07:34 pm at 7:34 pm |
  16. ib

    You notice a very liberal person; no doubt one that will walk all over the constitution like Obama has. Pathetic.

    April 29, 2010 07:34 pm at 7:34 pm |
  17. George of the jungle

    It dose not matter who he picks. We will have a big fight. The repos will not approve anyone the president chooses. He is a smart man and I think will make a good choice. I do hope who ever is more centerest. Tired of the right wing christian stance we see now from the court.

    April 29, 2010 07:48 pm at 7:48 pm |
  18. Mark Ferbet, KCMO

    He's a Democratic President, elected by a majority and has the right to choose anyone he wishes that will serve on the Court. If he replaces a Liberal Judge with a Liberal Judge, that won't change the court balance as it sits now. Only if a Conservative Judge retires or dies during his Administration will that put the Conservative Majority at risk.

    I think that any Republicans that scream too loudly or hold up his nominee may suffer in their home districts during the election cycle, as Americans are sick and tired of the same Rhetoric in Washington.

    April 29, 2010 07:49 pm at 7:49 pm |