The White House has formalized its short list of Supreme Court contenders and asked six prospects to provide personal background information, with an intensive vetting process well underway, according to sources close to the process.
The leading contenders on the short list: federal appeals court Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, sources close to the process say.
The White House hopes to move quickly on the nomination, with some in the administration signaling an announcement was possible within the next week or two. But a source involved in the process cautioned that the vetting for all of the candidates except Kagan (who was recently vetted as part of her nomination to be Solicitor General) could take longer.
That’s partly because of the thorough process, which is being run outside the White House and is similar to the vetting process for Obama’s vice presidential pick, multiple sources say.
The top contenders have received exhaustive questionnaires, similar to those for Obama's Cabinet-level positions but with additional focused questions targeted at legal ethics, sources say, while lawyers are combing through tax returns, speeches and opinions.
No clear favorite has emerged, but the pick has prompted an internal struggle between legal and political officials within the administration, sources say.
Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice.
Obama, the thinking goes, could score huge points with Hispanics, an important and increasingly powerful constituency, by nominating Sotomayor or another Latino. Sotomayor has a compelling life story, moving from the projects to the nation’s most elite educational institutions and then onto the federal bench.
But Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer—something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee, sources close to the process said. Moreover, she’s also been criticized for abrasiveness—which could be problematic on the high court.
Legal officials in the Administration want Obama to tap a candidate who would be a more obvious force on the Court, bringing both intellectual prowess and a proven ability to build coalitions. They favor either Kagan or Wood—prospects who could be considered judicial rock stars capable of going toe to toe with Scalia and Roberts.
Wood has a reputation as a careful jurist who, while liberal on social issues, is highly respected for her craftsmanship. She is an expert in the areas of international trade and antitrust, and a co-author of the leading textbook on trade regulation. The biggest strike against her is her age: She is 58.
Kagan, too, commands wide respect for her legal acumen, and she has a proven record of reaching out to conservatives—and as such has a stable of support on the Right. As dean of Harvard Law School, she raided the law school faculties at the University of Chicago and University of Virginia, bringing bright young conservative legal talent to Cambridge. She’s just 49 years old, a plus and a negative: She doesn’t have Wood’s experience.
But both Wood and Kagan, the argument goes, would be expected to be more effective in building coalitions and reaching out to moderate Justice Kennedy.
There’s something to be said for that argument. Justice Breyer—a liberal, but no Bill Brennan--was tremendously effective with Justice O’Connor, who drifted to the left over the years. Breyer didn’t exactly thrill liberals when Clinton nominated him, but a more liberal justice could have ended up pushing O’Connor away. Instead, Breyer quietly and persuasively drew her over.
There’s also this argument against Sotomayor for the first nomination: Obama will get another nominee. Why squander an Hispanic pick now, so far from the election and with such a solid majority of Democrats in the Senate? Save the Hispanic vote for closer to 2012, and after immigration reform has failed--when Hispanics need a bone.
Moreover, the argument goes, with Democrats in solid control of the Senate, it makes no sense to pick a nominee now who Republicans would be hard pressed to oppose--like the first Hispanic justice.
Ronald Reagan made that mistake with Antonin Scalia. In 1986, Reagan had a Republican majority when he nominated Scalia, the first Italian-American justice, who was warmly embraced by Democrats (Robert Byrd invited him to West Virginia for an appearance) and confirmed unanimously.
But in his next nomination a year later, Democrats had control of the Senate---and blocked Robert Bork. It would have been much more difficult for Democrats to block the first-ever Italian-American justice. Had Reagan nominated Bork first, it's widely believed by the Left and Right, he would have gotten both Bork and Scalia confirmed.
It’s true that Reagan scored major points when he fulfilled a campaign promise and used his first nomination to tap O’Connor, the first woman justice. But Obama didn’t campaign on the idea of nominating an Hispanic, and like Reagan, he’s going to get another chance with at least one more nomination in his first term.