The Many Narratives of a Court Nomination, and Obama’s ‘Problem-Solving Orientation’

With only two women among the nine justices, one line of thinking goes, President Obama will pick a woman. No, another argument goes, he would not feel so compelled and, anyway, he should save his strongest woman candidate for when pioneering feminist Justice Ruth Bader Ginsburg, 77, retires.

The president needs to go young, for his own legacy at the Court. No, age doesn’t matter, and isn’t 60 the new 50 anyway? What about religion? With the one Protestant (John Paul Stevens) retiring, the president can’t appoint another Catholic or Jewish justice, can he? But who these days would object to a nominee based on her (or his) religion? What about a nominee beyond the “judicial monastery,” as Senate Judiciary Committee Chairman Patrick Leahy likes to say? Yet what about all the baggage a governor or other politician might bring to the confirmation hearings, not to mention the problem with getting up to speed on the Court. And on that score, shouldn’t President Obama choose someone who can win over centrist conservative Anthony Kennedy? Or, should he focus on finding a “Scalia of the Left”?

Such are some of the many scenarios that preoccupy journalists these days. Just as I am at the point that all theories spawn counter-theories and I have over-thought the whole thing, I am reminded that President Obama likely knows more about constitutional law than any president and is coming at this in his own distinct way. Obama is one of only two U.S. presidents who graduated from Harvard Law School. Rutherford B. Hayes was the first. Obama was elected to the top editor position (president) of the Harvard Law Review, the first African American to attain such an honor, and he went on to teach constitutional law at the University of Chicago.

“Overall, Obama has, and had then, a problem-solving orientation,” Harvard Law Professor Laurence Tribe, a mentor to Obama in Cambridge, told David Remnick for his new book The Bridge. “He seems not to be powerfully driven by an a-priori framework, so what emerges is quite pragmatic and even tentative. It’s hard to describe what his presuppositions are, other than that the country stands for ideals of fairness, decency, mutual concern, and the frame of reference that is established by our founding and the critical turning points of the Civil War and the New Deal, as a frame to identify who we are. When Earl Warren was Chief Justice, he would ask, after an oral argument, ‘But is it fair?’ For Barack, the characteristic question is, ‘Is that what we aspire to be as a country? Is that who we are?’”

Last year, President Obama made the choice of Sonia Sotomayor essentially on his own. He weighed advice from staff, interviewed finalists, made a preliminary choice, and then spent a weekend making sure he was satisfied. No doubt he’ll follow a similar pattern this time, whatever narrative most appeals to him and whoever best meets the question of “who we are.”