Will it be Sotomayor, Granholm, Wood, Sears? In a decision expected soon, the president will name his successor for Justice David Souter, a George H.W. Bush appointee who spent 19 years on the nation’s highest court. Obama’s pick, almost certainly a woman, is not likely to shift the balance of power, say Supreme Court experts Howard Gillman and Daria Roithmayr.
“The long-shot money is on someone who is not currently on the federal bench, an experienced politician, young enough, with good credentials — someone like Michigan Governor Jennifer Granholm,” predicts Howard Gillman, dean of the USC College of Letters, Arts and Sciences. “Otherwise, the names most commonly mentioned are Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals; 7th Circuit Judge Diane Pamela Wood; and Leah Ward Sears, chief justice of the Georgia Supreme Court.
“These names reflect the high expectation that the president will appoint a woman — not a big surprise, given how many strong women candidates are available for a court that currently includes eight men,” Gillman notes.
Daria Roithmayr of the USC Gould School agrees: “Obama is likely to choose a woman, given that Justice Ruth Bader Ginsburg is the only woman on the court right now. Some commentators think he also feels pressure to choose a Latino/a.
“Finally, he is likely to choose a pragmatist — someone who brings a real-world problem-solving sort of approach to legal problems,” Roithmayr says.
Weighing the balance of power during Souter’s tenure, Gillman anticipates little change to the Supreme Court’s political alignment. He explains: “Justice Souter was a moderate, New England Republican who — like Republican appointee John Paul Stevens — voted most often with other moderate-liberals rather than with the court’s strong conservative majority. Souter’s association with the less conservative members of the court closely paralleled the fate of New England moderates in the Republican Party more broadly. In this respect, Souter’s position on the court is similar to Arlen Specter’s position in the Republican Party (his recent switch leaves Olympia Snowe and Susan Collins as the only Souter-like members of the Republican Party still in the Senate).
“The court’s so-called ‘liberal’ wing has, in recent years, been made up of two moderate Republicans — Souter and Stevens — and two moderate Democrats — Ginsburg and Stephen Breyer,” Gillman notes. “Even if Souter is replaced by someone who is slightly more liberal than the average of this group, it will still not change the balance of power. That’s because the tipping point of power on the court is held by the justice who holds the median ideological viewpoint, and even after Souter’s replacement is confirmed, that median justice will continue to be Reagan appointee Anthony Kennedy.”
While Roithmayr thinks Obama will choose someone more liberal than Souter, she agrees that the impact will be small. “Remember, Souter was a surprise,” she says. “He was a Bush appointee back in 1991, and had been recommended by John Sununu. He had very little paper trail, which made him the stealth candidate, hard to attack from the left. It turned out that he was quite independent-minded, and conservatives were in for a surprise on his early opinions having to do with abortion, for example.”
Roithmayr concludes: “Given that Souter joined with the more liberal wing of the court quite frequently, an Obama appointee isn’t likely to change the balance of the court in any real appreciable way.”
Howard Gillman, co-editor of Supreme Court Decision-Making (1999) and The Supreme Court in American Politics (1999), is researching the Supreme Court’s protection of civil liberties. Daria Roithmayr worked for Sen. Edward Kennedy on Supreme Court nominations.