Replacing Souter: Political Calculations
In the search for a replacement for retiring Justice David Souter, President Obama will face significant pressure not just to name a liberal justice, but also to appoint a woman justice.
Obama seeking 'diversity of experience'

by Mark Silva and Christi Parsons, updated at 3:30 pm EDT

With the confirmed retirement of Supreme Court Justice David H. Souter, President Barack Obama said today that he will seek a replacement with "a sharp and independent mind,'' and the White House added that Obama will seek in his first appointment to the court a candidate with "diversity of experience.''

Obama, personally announcing to reporters today that Souter has informed him of his plan to retire, said he will seek someone with a "sharp and independent mind" to replace the retiring justice.

"He came to the bench with no particular ideology," Obama said of Souter, complimenting the retiring justice. "He consistently defied labels and resisted absolutes."

In his place, Obama told reporters in an impromptu appearance in the press briefing room of the West Wing this afternoon, "I will seek somebody with a sharp and independent mind," someone who understands more than just a "footnote in a case book" but also "the realities" of how the law affects people's daily lives.''

Obama said that he values the "quality of empathy," and those of "understanding and identifying with people's hopes and struggles" in the process of arriving at decisions.

He said he will consult with members of Congress of both parties as he proceeds in his search for "somebody who shares my respect for constitutional values." And he hopes to have the new justice seated by the start of October, the beginning of the court's next term.

With Obama's own legal grounding as a teacher of constitutional law, at the University of Chicago, he "will be actively engaged in discussions ... in the right kind of candidate to pick, ensuring diversity in their background and experience,'' White House Press Secretary Robert Gibbs said today.

Asked about any "short list'' for an opening on the court, Gibbs said, ""Many people here have been working on the likely eventuality... the event that there might be a Supreme Court opening. They've been going through names, but I'm not going to get into a short, medium or long list.''

Asked if experience as a federal judge will be necessary, or if the president might seek someone who has spent a career in politics, Gibbs said: "The president... will look for diversity of experience... I don't want to get into exactly this or that qualification, but a diversity of experience.''

Among legal and political observers, speculation has focused on a field that includes at least one candidate who could offer the high court its first Hispanic justice and a second woman on the bench: Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals in New York.

Other potential candidates are said to include the Obama administration's solicitor general, Elena Kagan, and Judge Diane Wood of the 7th Circuit Court of Appeals in Chicago and Judge Kim Wardlaw of the 9th Circuit in California.
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The names of Kathleen Sullivan, former dean of the Stanford Law School, and Seth Waxman, a former U.S.solicitor general, have surfaced in some circles, as has that of Massachusetts Gov. Deval Patrick.

Asked how important "diversity'' will be in the selection of a nominee, Gibbs said of the president's considerations: "I think the most important thing, to him, is diversity of experiencesomebody who has not just thought about the law, but somebody who has the type of experience to understand how the decisions that he or she might make... might affect every day, average Americans.''

For instance, on a question of pay disparities for women, he said, that would call for "a person who could understand, through empathy, the situation that she was dealing with.''

Souter, a New Hampshire Republican who became a key liberal vote on the Supreme Court, reportedly plans to retire this summer, clearing the way for Obama's first nomination to the court.
Because the court has only one woman among its nine justices, most observers have predicted that Obama will select a woman for the first court opening.
The replacement for Souter is unlikely to alter the court's ideological balance, because he has provided a reliable liberal on all major issues decided recently, including abortion, civil rights, religion, Guantanamo Bay detention and the death penalty, and Obama is likely to name a justice of similar inclinations.

This could be only the first of Obama's opportunities to shape the court, however.

Two of Souter's favorite colleaguesJustices John Paul Stevens, 89, and Ruth Bader Ginsburg, 76 -- have been the center of retirement speculation.

Souter's pending retirement puts another important issue before Obama. The president is a former professor of constitutional law at the University of Chicago and has knowledge of the issues before the court. He also knows many lawyers and judges he could nominate.

Obama chose Kagan, dean of Harvard Law School, for solicitor general, the administration's lawyer before the court. But she has yet to argue a case.

Wood, an appointee of President Clinton to the U.S. 7th Circuit Court of Appeals in Chicago, is likely to be considered. She has taught at the University of Chicago and knows Obama.

Liberal activists have high hopes that Obama will appoint a solid liberal. Though Clinton's appointees -- Ginsburg and Stephen G. Breyer -- have voted reliably on the liberal side, neither has been a champion of social justice in the style of Justices William J. Brennan and Thurgood Marshall.

During the campaign, Obama praised Souter as a sensible and reasonable judge who is not an ideologue. Obama also said he wanted to appoint a justice who had empathy for real people with real problems. He suggested that some of the justices, although academically brilliant, have little understanding of those who struggle in their daily lives.

David G. Savage contributed to this report from Washington

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