The drum beat from senators has been growing this week: President Barack Obama, they say, ought to nominate to the Supreme Court seat being vacated by Justice David Souter a person with practical political experience.
For the first time in history, every member of the high court is a former federal appeals court judge — and some senators want to change that.
“I personally would like to see us get away from (the idea that) you have to be a judge to be a Supreme Court justice,” Senate Majority Leader Harry Reid said Tuesday on NBC’s "Today" show. “It would be good if we could get a governor, (if) we could get a senator or a former senator. People with some real-life experiences for a while, rather than people who walk around in these black robes all the time.”
Reid’s call for a practicing politician echoed comments by Judiciary Committee chairman Sen. Patrick Leahy, D-Vt., and Sen. Arlen Specter, the Republican-turned-Democrat from Pennsylvania who had until this week been the senior GOP member of the Judiciary panel.
Going 'outside the judicial monastery'
“I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Leahy, whose committee will hold the confirmation hearings once Obama makes his nomination to replace Souter.
“Many people think that the political background of Sandra Day O’Connor made her more effective on the court,” said Marcia Greenberger, co-president of the National Women's Law Center, a litigation and advocacy group in Washington.
O’Connor, a state senator in Arizona in the 1970s, was the last justice to have held elective office prior to joining the Supreme Court.
Greenberger’s group is urging Obama to appoint a woman to the high court. “We don’t have to have a particular person in mind because there are so many women governors, women prosecutors, women state attorneys general and women in academia,” said Greenberger.
(Her group opposed President Bush’s nominations of Chief Justice John Roberts and Associate Justice Samuel Alito, contending that they would “endanger core legal rights for women.”)
As it happens, Obama is friendly with two female politicians who are former prosecutors and have the political expertise that is becoming the dominant theme of this nomination season: Sens. Amy Klobuchar, D-Minn., and Claire McCaskill, D-Mo.
Obama trekked to Minnesota and Missouri in the 2006 campaign to help them win their seats.
In the last year’s presidential campaign, Klobuchar and McCaskill were champions of Obama’s candidacy, with McCaskill becoming the most ubiquitous cable television advocate for Obama.
Klobuchar said this week that it was “an honor” to be mentioned as a potential Supreme Court nominee, “but I think Minnesota deserves at least one senator,” a reference to the protracted legal dispute over whether Republican Norm Coleman or Democrat Al Franken won the state's other Senate seat in last November’s election. The seat has been vacant since January.
The pressure on Obama to name a woman to the court grew this week when USA Today published comments made by the court’s sole female member, Justice Ruth Bader Ginsburg.
Ginsburg sees male jurists' 'lack of understanding'
Before Souter announced he was stepping down, Ginsburg lamented the lack of women on the high court. The male members show "a certain lack of understanding" of the difficulties women litigants faced, Ginsburg said, as in the recent case involving the strip search of a 13-year-old girl by school authorities in Arizona. Ginsburg made the comments before Souter announced his retirement, but they were published on Wednesday.
Stanford University law professor Pam Karlan, a leading liberal scholar, stressed that Obama's nominee must have political smarts.
“I would love to see somebody with some political savvy,” Karlan said during a panel discussion Monday in Washington reported by Politico. “In some ways the temperament you want is somebody who’s not afraid to mix it up and somebody who’s not afraid to build coalitions.”
The nominee’s age and sex are nearly certain to be critical factors in Obama’s selection. Klobuchar is close to Obama in age, celebrating her 49th birthday in two weeks, while McCaskill will turn 56 this July.
President George W. Bush and his aides made a point of nominating judges who were under 55, in hopes that they’d serve for 30 years or more.
Presidents have frequently nominated friends or candidates with whom they feel a personal affinity.
Five of Franklin Roosevelt's nine nominees were poker buddies, advisers or political lieutenants. Roosevelt chose two senators to serve on the court, both of whom he was personally close to: Hugo Black and James Byrnes.
Two of Harry Truman's nominees, Harold Burton and Sherman Minton, were senators he had served with.
In all, 14 justices served in the Senate before being appointed to the high court.
One of John F. Kennedy’s two Supreme Court picks was his friend, 1960 campaign aide and Deputy Attorney General Byron White, and Lyndon Johnson appointed to the court his trusted adviser, counsel and speechwriter Abe Fortas.
Supreme Court scholar David Yalof, author of "Pursuit of Justices," said, “Personal acquaintanceship or friendship was perhaps the dominant consideration in the selection of justices by Harry Truman and Lyndon Johnson, and it was an important consideration for both FDR and Kennedy. By contrast, recent presidents determined to shift the court's jurisprudence in a more conservative direction (Nixon, Reagan and George W. Bush) have been willing to abandon friendship as a criteria in favor of ideological criteria.”
While Minnesota has a Republican governor and could fill the vacancy if Klobuchar were appointed, Missouri has a Democratic governor and could replace McCaskill with a Democrat.