The path to the Supreme Court is littered with obstacles that can trip up even the most politically nimble nominee. Some of President Barack Obama's possible picks may stumble on their own words.
Like defendants on trial, anything these prospective justices have said or done may be used against them by special interests hoping to influence the high court's makeup. Conservatives and liberals, businesses and trial lawyers, gun enthusiasts and gun-control activists, abortion opponents and abortion-rights supporters have a keen interest in a nominee's paper trail of rulings and legal arguments.
The Supreme Court selection process is expected to be intense, even though the White House and Senate are controlled by Democrats:
- Appeals Judge Diane Wood may be asked why she upheld an injunction barring anti-abortion protesters from blockading abortion clinics, in a case brought by the National Organization for Women.
- Former Harvard Law School Dean Elena Kagan would likely face questions over her objections to campus military recruiters, stemming from her disagreement with U.S. policy on gays serving in the military.
- U.S. Appeals Judge Sonia Sotomayor could be forced to explain siding with the city of New Haven, Conn., in a reverse discrimination case brought by white firefighters.
- Georgia Supreme Court Chief Justice Leah Ward Sears may face scrutiny from all sides on gay-rights issues. She ruled with the court in throwing out Georgia's hate-crimes law in 2004 as "unconstitutionally vague"; reinstating Georgia's gay marriage ban in 2006; declining to hear an appeal from a biological mother who wanted to terminate the parental rights of her former lesbian partner in 2007, a move viewed as a victory by gay-rights advocates; and tossing out Georgia's anti-sodomy law.
Wood in particular has already drawn attention from conservatives, who have wasted no time attacking her as someone they would least like to see on the court. The conservative Judicial Confirmation Network, in an advertisement, accused Wood of supporting fewer protections for religious students and abortion opponents than Nazis enjoy in Skokie, Ill., a reference to a famous freedom of assembly ruling.
Wood's record shows she is hardly a liberal extremist. For example, she ruled against women at Ameritech Corp. who wanted decades-old maternity leave to count toward their benefits.
"We think that Ameritech has the better of this dispute," Wood wrote in a July 2000 ruling. "These employees cannot show the kind of intentional discrimination that would trigger the exception to the statutory protection afforded to seniority systems."
A similar case played out this month in the Supreme Court, which overturned a ruling by another possible court nominee, Judge Kim Wardlaw of the 9th U.S. Circuit Court of Appeals in San Francisco.
Mirroring Wood's reasoning in the Ameritech case nine years ago, justices ruled that women at AT&T who took maternity leave decades ago can't sue to get that leave time counted toward their pensions. The leave occurred before it became illegal to discriminate against pregnant women. The case divided the court's liberals, with two justices dissenting, Ruth Bader Ginsburg and Stephen Breyer.
The women at AT&T who sued "will receive, for the rest of their lives, lower pension benefits than colleagues who worked for AT&T no longer than they did," Ginsburg wrote.
California Appeals Judge Wardlaw serves on what many conservatives regard as the most liberal federal appeals court in the U.S., a theme Republicans would use if she were chosen to replace retiring Justice David Souter.
In one decision that drew attention, Wardlaw ruled in favor of homeless people who were repeatedly arrested for sleeping on sidewalks in Los Angeles. The judge based her decision on the Eighth Amendment prohibition against cruel and unusual punishment.
Wardlaw, the first Hispanic woman appointed to a U.S. appeals court, was a Democratic political activist in the 1990s and her husband, Bill, has long been a major force in California politics. Both Wardlaws were close politically to President Bill Clinton.
One of the few men under consideration for the Supreme Court, Carlos Moreno, has a wide-ranging list of rulings on politically volatile issues as a California Supreme Court justice. He joined the court in:
- Backing gay rights, including striking down state bans on same-sex marriage and ordering country clubs to offer gay members who register as domestic partners the same benefits they give married couples.
- Upholding local governments' bans on gun shows on their property.
- In a free speech and religious rights case, concluding that a Catholic hospital that served people regardless of religion could ban what it considered an employee's proselytizing on the job, and that employees couldn't sue if they were fired by religious organizations for what the employers felt was inappropriate workplace religious speech.
- Siding with consumers in a right-to-sue lawsuit. The court ruled that, at least in some cases, provisions in consumer contracts such as credit card agreements that ask customers to waive their right to bring a class-action lawsuit cannot be enforced.
Any positions a court nominee has taken on abortion will likely draw scrutiny.
Another court prospect, Michigan Gov. Jennifer Granholm, twice vetoed a ban on the procedure that opponents call partial-birth abortion. In 2006, Granholm gave the keynote address at an abortion-rights rally at the state capital.
"Rather than changing laws to ban abortion, let's reduce the number of abortions by making it less necessary to have abortions," Granholm said at the time, words that track closely with Obama's approach.
Also as Michigan governor, Granholm filed a brief with the U.S. Supreme Court supporting the University of Michigan's affirmative action admissions policies. Granholm also filed a court brief in the case on the state's behalf in 2001, while she was attorney general and the case was before a federal appeals court.
Attorney and Stanford law professor Kathleen Sullivan may find her legal work for gay rights targeted by conservatives, and her representation of corporations may be unpopular with powerful lobbies on the Democratic side: trial lawyers and environmental groups.
Among Sullivan's cases, the Supreme Court agreed with her, just this month, that Shell Oil Co. cannot be held liable for cleanup of a Superfund site that it delivered chemicals to but didn't own; she won dismissal of a Securities and Exchange Commission complaint against Siebel Systems and its officers; and represented the Alliance of Automobile Manufacturers as it argued that federal regulations should overrule tougher state standards on vehicle greenhouse gas emissions.
Obama on Wednesday undid a Bush administration policy that used federal regulations to pre-empt tougher state environmental, consumer protection, health and safety laws, including California's greenhouse gas emission limits.
In other work, Sullivan was among lawyers representing Republican Sen. Mitch McConnell and others who sued to try to overturn new campaign finance restrictions sponsored by Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis.
Sullivan filed a brief for free on behalf of Nasdaq Stock Market Inc. and NYSE Euronext. Her brief was cited by conservative-leaning Justice Anthony Kennedy when the court ruled that investors who accused two suppliers of colluding with Charter Communications Inc. to deceive the cable TV company's stockholders and inflate its stock price, causing investor losses, couldn't sue the suppliers.
"Overseas firms with no other exposure to our securities laws could be deterred from doing business here," Kennedy wrote for the court. "This, in turn, may raise the cost of being a publicly traded company under our law and shift securities offerings away from domestic capital markets," he added, citing Sullivan's brief.
The 2008 ruling had implications for a similar class-action lawsuit in which more than a million shareholders who invested in scandal-ridden Enron Corp. were trying to recover more than $40 billion from Wall Street banks. A week after that ruling, the Supreme Court refused to hear shareholders' appeal in the Enron case.