When Barack Obama has named Supreme Court justices he admires—the type of constitutional thinkers he might nominate to the high court—his list has included the late Chief Justice Earl Warren.
Appointed in 1953 by Republican President Dwight Eisenhower, Warren guided the court to its landmark school desegregation decision: a unanimous rejection of the practice of "separate but equal" for blacks and whites. During his 16 years as chief justice, the popular former two-term GOP California governor emerged as a strong liberal, committed to civil rights and liberties and unafraid, his biographers say, of injecting his notions of fairness and common sense into the court's deliberations.
Conservatives like Robert Alt at the Heritage Foundation have seized on that, citing Obama's affection for Warren's style of jurisprudence—and his comments in a 2001 radio interview that the Warren court "wasn't that radical"—as evidence that the president-elect has extreme plans for the nation's highest court.
Yes, the high court rhetoric wars are well underway and will no doubt heat up. In his first term alone, Obama could have the opportunity to fill at least two, and maybe three, vacancies. His first nomination would mark only the third by a Democratic president in four decades.
Liberal court advocates like Nan Aron, who heads the Alliance for Justice, predict that once Obama is sworn in, "he will look to fill nominees as soon into his tenure as possible, when he's at his strongest." That's particularly important if the new president doesn't have a filibuster-proof, 60-member Democratic majority in the Senate. But all of this is, of course, up to the justices, their health, and their very private retirement plans.
As he takes office, Obama, a Harvard Law grad and former constitutional law lecturer at the University of Chicago, will inherit a decidedly right-leaning but divided court. There are four liberal and four conservative justices, with Justice Anthony Kennedy falling somewhere in the middle but tending right. The court's oldest members occupy the left-leaning seats. Justice John Paul Stevens, at 88, is the most often rumored to be contemplating retirement. Justice Ruth Bader Ginsburg, the only woman on the court since Sandra Day O'Connor retired in 2006, is 75. On the comparatively youthful conservative side, Chief Justice John G. Roberts, at 53, is the youngest, and Justice Antonin Scalia, the oldest at 72.
That raises the question: What effect would Obama's nominations have if he is replacing liberal-leaning justices? "Vacancies are likely to come from the more liberal wing of the court," says Linda Greenhouse, the former longtime New York Times Supreme Court reporter. "But that doesn't mean new appointments don't change the court's dynamic." She quoted the late Justice Byron White as saying that every time a new justice comes on the court, it's a new court.
A game-changer. Obama would have the opportunity—and very likely will face pressure—to name another woman to the high court and to make history by appointing the first Hispanic. "It's not just tick-tack-toe," says Greenhouse, who next year will write and teach at Yale Law School. "One person can shake a place up." Liberal activists say that the court could be enlivened if Obama picks a liberal firebrand, a mirror image of the very conservative Scalia. They are agitating for a game-changer, someone who will have the will and force of personality to drive deliberations. Says Aron, "A strong, vigorous counter is someone who would replace the lost voice of a Thurgood Marshall or a William Brennan," both outspoken liberals.
That kind of pick would certainly rouse right-leaning activists like Curt Levey of the conservative Committee for Justice, which was instrumental in securing the confirmations of President Bush appointees Roberts and Samuel Alito. Levey, like many judicial conservatives, remains bitterly disappointed that GOP presidential nominee John McCain didn't use the issue of judicial appointments, wrapped in the hot-button issues of abortion and same-sex marriage, as a campaign tactic. "I just don't understand it," Levey said, bemoaning the historic opportunity lost to potentially replace up to three liberal-leaning judges with conservatives and to continue to build on the Republican-appointed majority of appeals court judges. "At the very least, Obama will be able to strengthen the liberal wing of the court," Levey says. "At worst, Kennedy or Scalia will retire or die, and then you'll only need one liberal to have a solid liberal majority."
In his book The Audacity of Hope, Obama writes that the Constitution is a "living document" that "envisions a road map by which we marry passion to reason, the ideal of individual freedom to the demands of community." He admonished Roberts for a lack of empathy during his confirmation hearings after the nominee likened the role of a judge to that of a sports umpire. And during his campaign, Obama said he'd appoint people who "understand what it means to be on the outside," those who recognize "who the weak are and who the strong are in our society."
So, where does that leave a Warren-type appointment? Unlike many of the names on the tea-leaf readers' shortlist—that includes Appeals Court Judge Sonia Sotomayor and former Deputy Attorney General Eric Holder—a Warren mold would be an outsider, someone who had never been a judge. "Today, we have a court where all nine members served in immediate past jobs as federal courts of appeals judges," says Greenhouse. If Obama decides to mix it up a bit, he could pick his friend Massachusetts Gov. Deval Patrick or Washington Gov. Christine Gregoire, that state's former attorney general, observers say. Whatever direction he is inclined to move, it most likely won't be long before the nation finds out.
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