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Obama’s high court choice could be Hispanic, woman

Mark Sherman and Ben Feller

WASHINGTON — President Barack Obama pledged last week to name a Supreme Court justice who combines “empathy and understanding” with an impeccable legal background to succeed liberal David Souter, whose abrupt retirement announcement set off speculation the next justice could be a woman, a Hispanic or both.

Obama, who will be making the first high court nomination by a Democrat in 15 years, pointedly referred to his plan to have “him or her” on the bench in time for the Supreme Court’s session that begins the first Monday in October.

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives,” said the president in a surprise appearance in the White House Press Room moments after speaking with Souter by telephone. Word of the impending retirement had leaked last Thursday night.

Obama promised to consult with Republicans and Democrats alike on his choice to replace Souter.

Souter’s retirement after almost two decades of unpredictable decisions gives Obama an early chance to place his stamp on the nine-member high court, possibly by naming a minority — a second black or the court’s first Hispanic — or a second woman, as well as to affirm, if not strengthen, its support for abortion rights. As a candidate for the White House, he said he would not use a litmus test for nominees, but observed that he thought the landmark 1973 Roe v. Wade ruling that gave women the right to end their pregnancies was correctly decided.

Souter, 69, was named to the court in 1990 by the first President Bush, a Republican. But on abortion as well as other issues, the New Hampshire native quickly proved himself to be less than the strong conservative the GOP had expected. In 2000, he was one of four dissenting justices on a ruling that declared President George W. Bush the winner of the disputed national election.

Democrats, who control 59 seats in the Senate, will be in a strong position when Obama’s nominee arrives for confirmation proceedings.

Officials disclosed that even before he took office, Obama, a former constitutional law professor, offered guidance to transition aides assigned to the judicial selection process — and personally offered names of people whom he would seriously consider for the high court.

Some of the names that have been circulating outside the White House include recently confirmed Solicitor General Elena Kagan, U.S. Appeals Court Judges Sonia Sotomayor, Kim McLane Wardlaw, Sandra Lea Lynch and Diane Pamela Wood, and Leah Ward Sears, chief justice of the Georgia Supreme Court.

Massachusetts Gov. Deval Patrick, Harvard Law School Professor Cass Sunstein and U.S. District Judge Ruben Castillo of Chicago have also been mentioned.

While Obama ticked off many criteria, spokesman Robert Gibbs emphasized only one in a later briefing — a broad background in life outside campus classrooms and judges’ chambers.

Sen. Patrick Leahy of Vermont, who will preside over confirmation hearings as chairman of the Judiciary Committee, said he hoped Obama would consult with lawmakers in both parties, then issued something of a gentle challenge to Republicans.

“In exercising their important roles in the confirmation of the next Supreme Court justice, I hope that all senators will take this opportunity to unify around the shared constitutional values that will define Justice Souter’s legacy on the court,” he said.

Senate Republican Leader Mitch McConnell, in a written statement of his own, said, “I trust the president will choose a nominee for the upcoming vacancy based on their experience and evenhanded reading of the law, and not their partisan leanings or ability to pass litmus tests.”

Souter, who is expected to return to his native New Hampshire, is the youngest of three members of the court who have figured in retirement speculation in recent years. Justice Ruth Bader Ginsburg is 76 and recently underwent cancer surgery. Justice John Paul Stevens is 89, the oldest member of the court.

But one of the ironies confronting Obama is that even replacing all three would not allow him to fundamentally alter the court’s makeup on key cases in which there often are four judges predictably on one side, four on the other, and Justice Anthony Kennedy in the middle, in effect the deciding vote.

Souter’s retirement triggered a swift round of speculation about Obama’s intentions, as well as the usual prodding from all points on the political spectrum.

Sen. Arlen Specter of Pennsylvania, a Republican who turned Democrat earlier in the week, said the court “could use some diversity along a number of lines,” including African Americans and Hispanics.

The current court has one black justice, Clarence Thomas, and Ginsburg is the only woman. There has never been a Hispanic on the Supreme Court.

The nation’s first black president, Obama made no mention of using race or gender as a consideration.

But in urging the Senate to act promptly on his selection, he said he hoped “we can swear in our new Supreme Court justice in time for him or her to be seated” by early October. Spokesman Gibbs said Obama intended to have a nomination before the Senate “well before the end of July.”

Souter’s formal resignation letter was brief.

“Dear Mr. President. When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a justice.” He signed it: “Yours respectfully, David Souter.”

In his remarks, Obama said he intended to seek “somebody with a sharp and independent mind and a record of excellence and integrity,” while at the same time looking for “someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.”

“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,” he said.

In the past two vacancies, Republicans were able to win confirmation for Chief Justice John Roberts as well as Justice Samuel Alito with solid GOP support. Democrats were divided on both, some voting in favor of one or the other, while others heeded the pleas of outside liberal groups and opposed confirmation.

Roberts said of his colleague’s upcoming departure: “His desire to return to his native New Hampshire is understandable, but he will be greatly missed in our deliberations.”

As word of Souter’s retirement spread, conservative groups seemed to be laying the groundwork for a fight.

“Obama’s own record and rhetoric make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion,” said Ed Whelan, president of the conservative Ethics and Public Policy Center.

Associated Press Writers Jesse J. Holland, David Espo and Jennifer Loven contributed to this story.

(Associated Press)