President Obama has been vague about what type of jurist he intends to nominate to replace retiring Justice David Souter on the nation's highest court. There's no end of speculation about what the president means when he says he's looking for someone with "heart and empathy" and a keen understanding of "how our laws affect the daily realities of people's lives." But many think that means he intends to diversify the bench.
Indeed, analysts largely agree that Obama is looking for a candidate with a hard-knocks background and wants to appoint either a woman or a minority jurist. That puts Sonia Sotomayor, a woman of Puerto Rican descent from the Bronx who is a federal appeals court judge, atop most short lists. Others mentioned include Solicitor General Elena Kagan, Circuit Court Judge Diane Wood, and Pamela Karlan and Kathleen Sullivan, both professors at Stanford Law School.
Vetters and opposition researchers are zeroing in on Sotomayor, the perceived front-runner. A video from a 2005 forum at Duke University recently surfaced in which Sotomayor appears to jokingly refer to the Court of Appeals "making policy" (a phrase sure to enflame conservatives). But the case most mentioned by critics is her concurrence in a ruling against a group of white Connecticut firefighters who sued over a hiring policy that gave preference to minority candidates. The reverse-discrimination case was appealed to the Supreme Court, which has yet to issue a ruling.
It's both ironic and fitting, court watchers say, that Sotomayor may face the most scrutiny over an affirmative action ruling. Such cases are among the most contentious and intractable in the realm of civil rights issues. If Sotomayor is nominated, it will imply that her gender and lineage, in addition to her legal work, recommend her for the position. Of course, a diverse heritage and background aren't always indicative of a justice's take on civil rights. David Souter, who was a civil libertarian, became a staunchly liberal advocate in civil rights cases over the years. "The next justice will have to fill Souter's enormous shoes in terms of civil rights decisions," says Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law. "The list of potential candidates is noteworthy not only because of the diversity of the candidates themselves but also the strength of their legal work."
The current Supreme Court has shown an active interest in civil rights cases in particular. During the current term, the justices are hearing nine major civil rights cases. The cases percolating throughout the lower courts suggest that civil rights will continue to dominate the high court docket for years to come.
Whoever is finally nominated will surely face stiff questioning on civil rights issues before the Senate Judiciary Committee, which confirms justices. Alabama Sen. Jeff Sessions, who replaced now Democrat Arlen Specter as the top Republican on the committee, was himself denied a federal judgeship in 1986 before the very same committee. His nomination was torpedoed mostly because of his handling of civil rights cases during his time as a U.S. attorney in Alabama. And no matter whom Obama settles on as a nominee, Sessions and the GOP aren't likely to back down. In the end, the hearts and empathy of those who judge the nominee may be as important as the views of the jurist.