No decision by an American president has longer-lasting consequences than the nomination of a justice to the U.S. Supreme Court. As the current members of the court age, the likelihood increases that the next president will appoint one, two or even more justices.
On the campaign trail, Republican John McCain mocks Democrat Barack Obama as an elitist and tries to link him to professors and activists. Obama was, in fact, a professor: He lectured on constitutional law for 10 years at the University of Chicago.
What The Founders Meant
Obama's book The Audacity of Hope devotes an entire chapter to the subject. In it, he confesses to having some sympathy for conservative Justice Antonin Scalia's view that the Constitution's language is perfectly clear on some matters and can be strictly applied. But in the end, Obama writes, much of the Constitution speaks in generalities that cannot tell us what the Founding Fathers would have thought about modern dilemmas: whether, for example, the National Security Agency's data mining is constitutional, or what freedom of speech means in the context of the Internet.
"Anyone like Justice Scalia looking to resolve our modern constitutional dispute through strict construction has one big problem," Obama writes. "The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece."
The professorial Obama is on display in this chapter, refusing to provide simple answers or formulas, and rejecting so-called bright lines. "Its not just absolute power that the founders sought to guard against," he writes. "Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth — the infallibility of any idea or ideology, or theology, or 'ism', any tyrannical consistency that might lock future generations into a single, unalterable course."
Obama concludes the chapter by lauding the founders' end product: "The Constitution envisions a road map by which we marry passion to reason — the ideal of individual freedom to the demands of community. And the amazing thing is that it has worked."
Obama The Constitutionalist
University of Chicago law professor Cass Sunstein has known Obama since they both taught at the law school. Sunstein points out that we have not had a constitutional law specialist in the White House in an exceptionally long time — perhaps not since the early days of the republic.
Former Bush Associate White House Counsel Brad Berenson, who nearly 20 years ago worked with Obama as an editor at the Harvard Law Review, does not share Obama's politics. But Berenson recognizes that the Democrat is far more knowledgeable than McCain when it comes to the courts. Berenson predicts that Obama's background in constitutional issues "may mean that a President Obama takes more personal interest and more of a personal hand in his judicial appointments than a President McCain would."
Berenson also believes Obama would lean considerably more left than President Clinton did in his appointments to the court, in part because, with a firm Democratic majority in the Senate, Obama would have a freer hand. A President McCain, he says, would face a dilemma.
"I think McCain would find himself in a very difficult spot, because the Republican base would not accept anyone who was not genuinely and authentically conservative from a judicial point of view," he says. "And an overwhelming Democratic Senate might not be willing to confirm such a person."
Another Woman On The Bench?
Most observers of the Supreme Court agree about one thing: The next nominee is likely to be a woman.
The possible Obama appointments that insiders suggest tend to the center left. They include federal Judge Sonia Sotomayor, who is Hispanic; Harvard Law School Dean Elena Kagan; Michigan Gov. Jennifer Granholm; and some commentators have even mentioned Hillary Clinton, though a Clinton nomination is widely seen as too political for the supposedly apolitical court.
For McCain, there is a hunt on for either a stealth candidate without too much of a record, or someone with enormous public presence — conservative enough to win the backing of the GOP base, yet able to sell herself to the Senate.
Republicans concede that finding a woman who completely fits this bill is tough. There are a number of impressive conservative female judges and lawyers, but perhaps not conservative enough for the GOP base.
So in the end, the most oft-mentioned prospects are not women, but men such as former Solicitor General Paul Clement, Judge Jeffrey Sutton and Judge Michael McConnell. A heavily Democratic Senate, however, might balk at any of these conservatives, too.