THE ADVANTAGE OF COLLEGIALITY:

In Court Pick, Obama Seeks to Be Bold but Not Provocative (Dan Balz and Robert Barnes, 5/10/09, Washington Post)

"He's less eager to send a message than to send a great justice," said White House senior adviser David Axelrod. "The people he's considering have something in common. They're rigorous and well qualified. But they all offer different qualities beyond that. He'll make a decision at the end of the process as to what combination of qualities he favors. He's not working off a set of specs."

Another senior White House official, who spoke on the condition of anonymity to more freely discuss internal deliberations, said, "This is not going to be a bomb-thrower." Obama "may ultimately decide on a pick that is distinguished in being the first something. But I think they will be a pragmatist above all." [...]

Obama has begun to narrow his choices. A knowledgeable source outside the White House said the list of candidates who are being put through a thorough vetting numbers six. Most outside observers think that the president is almost certain to pick a woman, and the four thought to be under the most serious consideration are Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit, Solicitor General Elena Kagan and Michigan Gov. Jennifer M. Granholm (D). [...]

Laurence H. Tribe, a Harvard constitutional scholar who is a mentor and adviser to Obama, said the choice can be bold without provoking a battle with Congress or disrupting the president's complicated legislative agenda.

Obama may not be able to avoid sparking partisan conflict among outside groups, and one adviser said the president will not shy away from a fight, if necessary, to win confirmation for his choice.

But a longtime adviser said he thinks that Obama would like to use this nomination to signal a change from the tone and tenor of recent confirmation battles. "More than anything, I think he wants . . . a pick that exemplifies that this city is changing, rather than going back to the old battles," this adviser said.

Though as a senator he opposed both of President George W. Bush's nominees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., Obama also admonished liberal interest groups that attacked Democratic senators for supporting Roberts's nomination.

Given all this, it will be hard for Obama to find a candidate who can fulfill the expectations he has set, as well as the hopes of Democrats and liberals who have waited 15 years for the chance to appoint a justice.

In addition, Tribe said, "being persuasive, being a consensus-builder, matters a lot to the president." With the court split, the ability to persuade Kennedy and perhaps other conservatives is key to forging outcomes that liberals seek. Justice John Paul Stevens, 89, is currently the chief tactician on the liberal side.

Tribe thinks that Kagan showed such skills in her tenure as dean of Harvard Law School, where she quieted the fractious faculty and won the respect of conservatives by hiring across the ideological spectrum.

Besides her proven ability to work in such a setting--which was Chief Justice Roberts greatest asset--Ms Kagan also has been vetted for her willingness to defend the Obama line, Kagan's Supreme Court preview? (MANU RAJU | 3/20/09, Politico)

In a 21-page letter sent this week to Sen. Arlen Specter, the top Republican on the Senate Judiciary Committee, Kagan said she is not “morally opposed” to the death penalty, which she calls constitutional. “I would as strongly defend federal death penalty statutes as I would defend any other kind of federal legislation,” she said.

She says that foreign law can be used to interpret the U.S. Constitution in “some circumstances,” like the Eighth Amendment prohibiting cruel and unusual punishment. But she believes that the federal spying laws are constitutional and suggests that only on the rarest of circumstances could a president circumvent Congress to conduct warrantless spying.

Kagan also believes that terrorism detainees held at the Bagram detention facility in Afghanistan should not have due process rights.

Regarding gun laws, Kagan says she has “no reason to believe that the court’s analysis was faulty” in the 2008 Supreme Court case striking down the District of Columbia’s strict gun-control laws. And she added that her office would likely “continue to defend” against constitutional challenges on various federal regulations concerning firearms.

She said that that she considered the controversial 2005 Supreme Court case, Kelo v. New London, which upheld a broad reach of the Constitution’s Takings Clause “settled” law, but said that she would side with Congress if it sought to curtail that ruling. That Connecticut eminent domain issue fired up the conservative base, which believed that the government trampled on property rights in this case.

Kagan also suggests that the U.S. government is on solid legal ground in its previous positions to uphold the military’s “don’t ask, don’t tell” recruitment policy concerning homosexuals.

“These findings satisfy the Equal Protection Clause’s rational basis test, and the government accordingly has had broad success in defending the ‘don’t ask, don’t tell’ policy and its associated statute against constitutional challenge,” she said. Kagan was referring to language Congress enacted saying that “the prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.”

Posted by Orrin Judd at May 10, 2009 7:17 AM