Favorites of Left Don’t Make Obama’s Court List
By PETER BAKER
Published: May 25, 2009
WASHINGTON — Pamela S. Karlan is a champion of gay rights, criminal defendants’ rights and voting rights. She is considered brilliant, outspoken and, in her own words, “sort of snarky.” To liberal supporters, she is an Antonin Scalia for the left.
But Ms. Karlan does not expect President Obama to appoint her to succeed Justice David H. Souter, who is retiring. “Would I like to be on the Supreme Court?” she asked in graduation remarks a couple of weeks ago at Stanford Law School, where she teaches. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”
While there are clear political advantages to Mr. Obama if the perception is that he has avoided an ideological choice, Ms. Karlan’s absence from his list of finalists has frustrated part of the president’s base, which hungers for a full-throated, unapologetic liberal torchbearer to counter conservatives like Justice Scalia.
It has been more than 40 years since a Democratic president appointed someone who truly excited the left, but Mr. Obama appears to be following President Bill Clinton’s lead in choosing someone with more moderate sensibilities.
The president has narrowed his list to four, according to people close to the White House — two federal appeals judges, Sonia Sotomayor of New York and Diane P. Wood of Chicago, and two members of his administration, Solicitor General Elena Kagan and Homeland Security Secretary Janet Napolitano.
While it is possible Mr. Obama has a surprise in the works, those on this list are cut from molds similar to those of the two Clinton appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer. They are liberal on most issues that divide the court — and surely too liberal for many Republican senators — but have not been the outspoken leaders of the legal left that advocates crave.
“He’s not going to go in that direction,” said Bernard W. Nussbaum, who was Mr. Clinton’s first White House counsel and oversaw Justice Ginsburg’s appointment. “I don’t think that he’s worried about the left. I think he’s doing the same thing we did.”
Mr. Obama talked with his legal team on Monday, and White House aides said an announcement could come as early as Tuesday. Coming so early in his tenure, before he establishes a record of lower court nominations, the decision could be an important indicator of how he will use his judicial appointment power. It could also intensify the debate over how to define Mr. Obama ideologically after months in which he has mixed traditional liberalism with a more centrist streak on a wide range of issues.
“It’s quite likely the left is not going to get what it wants,” said Thomas C. Goldstein, co-head of the Supreme Court practice at Akin Gump Strauss Hauer & Feld and founder of Scotusblog, a well-read Web site. “If you talk about somebody who’s a true liberal, a very strong progressive and a visionary architect of the law and jurisprudence, then you’re talking about somebody like Pam Karlan at Stanford. And nobody is seriously talking about Pam Karlan.”
Other favorites of the left who do not appear to be on Mr. Obama’s short list are Kathleen M. Sullivan, who also teaches at Stanford, and Harold Hongju Koh, the dean of Yale Law School, whom the president has nominated to be the legal adviser at the State Department.
“Unless Obama restrains his compulsion toward centrist consensus and appoints real progressives to replace not only Souter but Ginsburg and Stevens, our right-wing court may get even more conservative,” Jeff Cohen, founding director of the Park Center for Independent Media at Ithaca College, wrote on a Web site for progressive commentary, OpEdNews.com.
The four said to be on Mr. Obama’s list are known as liberals if not crusaders, and advocates said they would still generate enthusiasm. Judge Wood, in particular, has attracted favorable attention from the left. Still, Geoffrey Stone, a University of Chicago law professor, who expressed great support for his former colleague, noted that she was an “incrementalist” not inclined to take on broad structural changes in the law.
Ms. Kagan has drawn more mixed reviews on the left because of her support for executive power and what some colleagues said was a tendency to find a middle road.
The White House does not appear to be especially worried about criticism from the left. With an eye to the confirmation battle ahead, it seems happy to embrace the conclusion that Mr. Obama was choosing from a list with more moderate tendencies than many liberals would like to see in the next justice.
Mr. Obama is already taking heat from conservatives for saying he favors appointing someone who shows “empathy,” a word the right views as code for judicial activism.
If nothing else, the White House has succeeded in keeping its base quieter than the Bush White House did its own. While conservatives were vocal about their desires before President George W. Bush’s selections of John G. Roberts Jr. and Samuel A. Alito Jr. — and effectively torpedoed the short-lived nomination of his White House counsel, Harriet E. Miers — liberals have been largely silent in public about the Obama selection process.
Some liberals said they wished Mr. Obama would be as bold in reshaping the court from the left as Mr. Bush was from the right. Mr. Obama has more latitude than Mr. Clinton did, they said, noting that Democrats would control 60 votes in the Senate if Al Franken’s victory in Minnesota is upheld, enough to beat back any filibuster.
“I’m sure there’s enormous pressure, because I’m hearing it being two steps removed from the president,” said Charles J. Ogletree, a Harvard Law School professor who advises the White House.
Walter Dellinger, who was acting solicitor general under Mr. Clinton, said liberals might be wrong to hope for a repeat of the activism of Chief Justice Earl Warren, whose court outlawed segregation, established privacy rights and broadened due process protections for defendants.
“The Warren court heroically took on entrenched systems that were utterly inconsistent with constitutional equality and fairness,” Mr. Dellinger said. “But that is history. It is not clear that progressive values will best be served in the future by judicial activism. Judicial power is now often used to strike down or limit progressive measures adopted by Congress or the states.”
Neil A. Lewis contributed reporting from Washington.