New justice will be first chance for Obama to construct U.S. SC

John O'Brien May 6, 2009, 3:38pm



WASHINGTON (Legal Newsline) - President Barack Obama's chance to reshape the U.S. Supreme Court in the mold he sees fit begins with retiring Justice David Souter's replacement, Princeton University provost Chris Eisgruber said Wednesday.

Judging by the ages of the current justices, Obama may end up nominating up to five justices if he lasts eight years, Eisgruber said. Souter is resigning this summer after 20 years on the Court.

"Supreme Court justices have tended, now, to serve for very long periods of times. Even if (Obama) serves eight years, he might not appoint that many but if you look at the ages on the Court it's at least a possibility," said Eisgruber, author of "The Next Justice: Reparing the Supreme Court Appointments Process.

"He ought to be thinking of how he can shape the Court. My guess is he will end up making 3-5 nominations, so instead of thinking of just one person on the Court he should be thinking about what slate of nominees he wants to put together."

Like many media reports have speculated, Eisgruber agreed that adding a woman to join Ruth Bader Ginsburg on the nine-member Court makes sense. Ginsburg said that would be just fine with her in a recent USA Today article.

"Women belong in all places where decisions are being made. I don't say (the split) should be 50-50," Ginsburg said, according to the report. "It could be 60% men, 40% women, or the other way around. It shouldn't be that women are the exception."

Eisgruber says the appointment of a new justice may break a trend. All nine current justices served as federal appeals court judges and none of them have ever been elected to a statewide office. Souter was the attorney general of New Hampshire, but that position is appointed by the governor.

"My own view is President Obama, in addition to looking for a jurist who is a top-flight lawyer and shares his Constitutional values, should seek diversity on the Court in many ways, not only in regards to race and gender, but experience," Eisgruber said.

Names mentioned in media reports as possible candidates include Michigan Gov. Jennifer Granholm, Georgia Supreme Court Chief Justice Leah Ward Sears and federal appeals judges Sonia Sotamayor and Kim Wardlow

"I actually don't see a problem with that," Eisgruber said, referring to the notion that only women stand a chance at being appointed as Souter's replacement. "The idea that there is a best jurist is not like saying there is a best shortstop.

"There are plenty of well-qualified lawyers out there with the right set of values. I don't have any doubt this President will choose someone who is a first-rate lawyer to be on the court and there is no doubt it will be a liberal, strong or moderate."

Many say Souter surprised Republicans during his time on the Court, leaning a little more to the left than President George Bush expected when appointing him in 1989.

Obama is surely hoping the same doesn't happen to him.

"I think it all depends on what President Obama's own view is about the Court and what his Constitutional values are," Eisgruber said. "I think President Obama, himself, tends on some Constitutional issues to land on the moderate side."

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