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Obama calls 'empathy' key to Supreme Court pick

Interest groups are already lobbying for a woman, minority or solid liberal to succeed Justice David Souter. Obama says he puts empathy, intelligence and independence before ideology.

May 02, 2009|Janet Hook and Christi Parsons

WASHINGTON — A debate among Democrats over who should replace Justice David H. Souter on the Supreme Court began emerging Friday between those eager to return the court to its liberal era of 40 years ago and those who are wary of tacking too far to the left.

But President Obama, who will choose the nominee, focused not on volatile ideological questions but on personal character, saying he wanted someone with "empathy" for "people's hopes and struggles."

Making a surprise appearance in the White House press briefing room, Obama told reporters that he had just talked with Souter by phone about his retirement, which is to take effect at the end of this court term, probably in June. It was the first official confirmation of the justice's departure.

Obama said that in considering a successor for Souter, he was looking for a "sharp and independent mind" and a sense of compassion.

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook," he said. "It's also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation."

Even before the president spoke, interest groups that had seen early reports of Souter's decision began lobbying the White House and the public.

With white men holding seven of the nine court seats, Obama came under heavy pressure to name a woman or minority, especially a Latino.

Others said they were eager for him to name a high-profile, clear-cut liberal. The last justice to fit that mold was Thurgood Marshall, who took the bench in 1967. Liberal groups argued that the Democratic Party's majority in the Senate, which is nearly large enough to overcome any obstacles set by Republicans, gives Obama far more latitude than most presidents in making his choice.

"If there was ever an opportunity for Obama to make a bold statement, this is the time," Stanford law professor Pamela Karlan said.

Others cautioned that the wrong selection could alienate moderate Democrats or set off a protracted fight with Republicans that could undermine Obama's ambitious healthcare and environmental agenda.

"This is an opportunity for him to make a post-partisan choice to fortify the vital center on the Supreme Court," said Will Marshall, president of the Progressive Policy Institute, a centrist Democratic think tank.

While reviewing the records of potential nominees, the president's advisors have discussed the importance of finding a justice who can build majorities on the court by reaching out to conservatives.

The decision will probably be a pillar of Obama's legacy: The choice of Supreme Court justices, with their lifetime tenure and vast sway over American law, gives presidents one of their most powerful tools to shape the country beyond their own White House years.

One longtime friend of Souter's suggested Friday that Obama's election and powerful hand in the Senate had prompted the justice to act on a long-held desire to retire.

"He hasn't been enjoying the Washington scene" and could have retired several years ago, said John McCausland, vicar of Holy Cross Episcopal Church in Souter's hometown of Weare, N.H. "But it looks like he has 60 votes in the Senate and a president -- well, you can figure out the rest."

Souter is expected to return to the modest 200-year-old New Hampshire farmhouse where he has lived since he was 11. (He has kept a small apartment in Washington.)

"He has been talking every year about his desire to retire at the appropriate moment," McCausland said. "He's looking forward to having a life again."

That life will include hiking and book collecting. Souter has so many volumes, McCausland said, that he may build a new structure to house and organize them.

In addition, he may do some work with the U.S. 1st Circuit Court of Appeals in Boston.

The Obama team has been preparing for a Supreme Court nomination for months. The president set up a judicial working group just after his election in November, and charged it with drawing up a list of candidates for the high court and federal courts around the country.

As early as December, during meetings in Chicago and Washington, Obama suggested the names of people he would seriously consider for the Supreme Court, according to an administration official familiar with the process.

After Obama's inauguration, the review became more formal and more intense. The effort was led by White House Counsel Greg Craig, who established a small team to vet possible nominees.

Atty. Gen. Eric H. Holder Jr. and his staff are not likely to play a primary role in selecting the nominee or trying to win confirmation, according to one senior administration official who requested anonymity when discussing Obama's plans.

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