Image: Sonia Sotomayor
Ron Jordan Natoli Studio  /  AP
This 2003 photo provided by the 2nd U.S. Circuit Court of Appeals in New York shows U.S. Appeals Court Judge Sonia Sotomayor.
updated 5/19/2009 3:54:26 PM ET 2009-05-19T19:54:26

Questions about abortion, gay rights, rights of suspected terrorists and the meaning of a new judicial buzz word — empathy — await President Barack Obama's eventual Supreme Court nominee. Just don't expect much in the way of answers.

Nominees to the high court rarely wade into dangerous waters during Senate confirmation hearings. Nonetheless, senators — especially the conservatives — plan to use the opportunity to try and divine some hint for how far left on the ideological spectrum Obama's first nominee will fall.

"The nominee deserves a fair evaluation, and I will insist on a fair hearing, but I will also ensure that the questioning be a rigorous and thorough examination of his or her qualifications," said Alabama Sen. Jeff Sessions, senior Republican on the Senate Judiciary Committee.

Obama is expected to announce soon his choice to replace retiring Justice David Souter, a George H.W. Bush nominee whose confirmation hearing in 1990 didn't foretell how much he would side with the court's liberals and against its conservatives.

Among the possible candidates Obama is considering, according to officials familiar with his thinking, are Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood.

Candidate investigation
Once Obama makes his choice, the Senate will prepare for confirmation hearings this summer. Between the nomination and confirmation hearings, the Judiciary Committee will investigate the nominee's past and come up with questions that will try to get the nominee to reveal her or his judicial philosophy and provide a hint as to what kind of justice she or he will be.

The questioning is to ferret out "how Supreme Court nominees view the roles of justice, how a nominee approaches constitutional interpretation and precedent, as well as a nominee's appreciation of the separate branches of government," Republican Sen. Charles Grassley of Iowa said at Justice Samuel Alito's confirmation hearing three years ago.

Picking Supreme Court nomineesSenators can't force the nominee to answer. They can only vote for or against the nominee, something they have complained about for years when they haven't gotten the answers they wanted.

The nominee's job is to get confirmed, which usually involves saying nothing to the Senate that is particularly attention-grabbing, out of character or that reflects anger or lack of preparation.

Sometimes, even simple questions have gotten Supreme Court nominees in trouble.

When asked in 1987 why he wanted to serve on the nation's highest court, Robert Bork startled even some supporters when he replied that it would be an "intellectual feast." Nominated by President Ronald Reagan, Bork had already been criticized for being unfeeling and for caring more about legal ideas than the effect the law had on people. For those and other reasons, he failed to win confirmation in the Democratic-controlled Senate.

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Asked the identical question in 2006 by Sen. Jon Kyl, R-Ariz., Alito responded simply: "This is a way for me to make a contribution to the country and society."

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Nominees in recent history have refused to discuss issues that might come before the court. That way, nominees argued, they couldn't be accused of prejudging cases. Given the number of issues that the Supreme Court might deal with in the future, it also allowed them to avoid giving any answers that could have swayed a senator to vote against them.

Asked about abortion at his confirmation hearing for chief justice in 2005, John Roberts was willing to talk legal theory but refused to answer specifics on how he thought.

"I think I should stay away from discussions of particular issues that are likely to come before the court again," Roberts told the Judiciary Committee. "And in the area of abortion, there are cases on the court's docket, of course. It is an issue that does come before the court. So while I'm happy to talk about stare decisis and the importance of precedent, I don't think I should get into the application of those principles in a particular area."

Democrats complained bitterly after hearing Roberts' and Alito's answers.

"At a time when great legal issues are being decided by the slimmest of margins, we cannot afford to learn nominees' views only after they have obtained lifetime tenure on our highest court," said Sen. Edward M. Kennedy, D-Mass.

The importance of empathy
One line of questioning the nominee probably won't escape is Obama's emphasis on wanting a justice willing to empathize with people affected by cases that come before the court.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes," Obama said recently. In the toughest cases, the president added, "the critical ingredient is supplied by what is in the judge's heart."

That description doesn't worry Democrats, but conservatives have pounced on the president's use of "empathy," which they equate to judicial activism, and they are sure to question any nominee about it.

"Sounds like instead of another Judge Roberts, the president is looking to put Dr. Phil on the court," quipped Michael Steele, chairman of the Republican National Committee.

Conservatives say a Supreme Court justice should use the law, not what's in their heart, to make decisions.

"Americans expect, and should receive, equal treatment whether they are in small claims court or the Supreme Court," said Senate Republican Leader Mitch McConnell of Kentucky. "And any judge who pushes for an outcome based on their own personal opinion of what is fair undermines that basic trust Americans have always had and should always expect in an American court of law."

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