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FEBRUARY 8, 2010

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Democrats Divide on Voice of Possible Top-Court Pick By J E S S B R AVIN

WASHINGT ON—Democrats gearing up for a possible Supreme Court v acancy are div ided over whether President Barack Obama should appoint a prominent liberal v oice while their party still commands a large Senate majority , or go with someone less likely to stoke Republican opposition.

T he court's longest-serv ing member, Justice John Paul Stev ens, has suggested that he may retire at the current term's end in June, when he will be 90 y ears old.

T he second-eldest justice, Ruth Bader Ginsburg, 76, has said she hopes to emulate her judicial idol, Justice Louis Brandeis, who retired at 83. But Justice Ginsburg's health issues—she was treated last y ear for pancreatic cancer—have made preparations for her retirement prudent, officials said.

If any justice steps down, it would be the second opportunity for Mr. Obama to name a member of the court. Last y ear, the president chose Sonia Sotomay or to succeed the liberal-leaning Justice Dav id Souter.

T he White House considered Justice Sotomay or's rise from Bronx, N.Y ., through the Iv y League and onto the federal bench as a potent sy mbol of American social mobility .

Some liberals lamented that she lacked the prov ocativ e philosophical profile that Republican administrations hav e sought in some of their most important judicial nominees, such as Justice Antonin Scalia, a Reagan appointee who has popularized a conserv ativ e approach to legal interpretation.

"Sotomay or fits further into the problem of lacking any powerful liberal v oice," said Univ ersity of Chicago law professor Geoffrey Stone, a friend and former faculty colleague of Mr. Obama. Like many liberal academics, Prof. Stone considers Justices Stev ens, Ginsburg and Stephen Brey er as relativ e moderates who don't articulate a robust philosophical alternative to the court's aggressiv e conserv ativ es, Justice Scalia, Chief Justice John Roberts, and Justices Clarence T homas and Samuel Alito.

Without trailblazing liberals like the late Justices William Brennan and T hurgood Marshall on the bench, "the court is getting this completely skewed internal debate about how to think about constitutional law," Prof. Stone said. T hat's bad for the court and bad for the nation."

Other allies of the president say picking a "Scalia of the left" would be a mistake. A candidate with a sharp liberal record "is such an attractive target for a fight, it could screw up the whole summer," ty ing up the Senate and further handicapping the Democrats' agenda, said a Democrat familiar with the White House's thinking on judicial nominees.

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"T he president doesn't have the same popularity he did last summer, and that goes both in terms of the American people giv ing his nominee the benefit of the doubt, and the Republicans standing up to him," said Curt Lev ey , executiv e director of the Committee for Justice, which promotes conserv ativ e judges and opposed Justice Sotomay or as too liberal.

As a result, the White House is expected to giv e less-controv ersial candidates a close look. T wo who hav e been repeatedly mentioned by people close to the process are Mr. Obama's solicitor general, Elena Kagan, 4 9, and a federal appellate judge, Merrick Garland, 58, of the District of Columbia Circuit.

T he president is still far from any decision ov er the possible opening and may consider some people who hav en't made short lists in the past. T he White House declined to comment.

Another name often mentioned is Diane Wood, 59, an appellate judge at the Sev enth Circuit in Chicago. Mr. Lev ey , citing a dissent Judge Wood wrote inv olv ing abortion rights, said she would likely spark a bigger confirmation fight than Ms. Kagan or Judge Garland. Still, she is likely to hav e some prominent conserv ativ e backers as well, including former faculty colleagues from the Univ ersity of Chicago law school.

Ms. Kagan, a former dean of Harv ard Law School, and Judge Wood were finalists for the appointment that went to Justice Sotomay or.

Any successor to Justice Ginsburg is likely to be a woman, but if Justice Stev ens retires, some close to the White House giv e the edge to Judge Garland, a former assistant U.S. attorney . Sev eral prominent conserv ativ es hav e publicly suggested that giv en a Democratic president will make the selection, he could pass muster.

Write to Jess Brav in at jess.brav [email protected]

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