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Obama Begins To Scrutinize Potential Supreme Court Nominees

Publication Date: 
April 21, 2010
Source: 
PBS Newshour with Jim Lehrer
Author: 
Gwen Ifill

Lecturer Thomas Goldstein takes part in a discussion led by Gwen Ifill of PBS Newshour on the President's second nomination to the Supreme Court:

As President Barack Obama reaches out to potential replacements for Justice John Paul Stevens on the bench, Gwen Ifill gets three points of view from legal experts on the politics behind the president's second nomination to the Supreme Court and the confirmation battle that is likely to ensue.

...

GWEN IFILL: The president's choice could be announced next month. The court's fall term begins in October.

For a broader look at the president's choices and the face of the court to come, we are joined by Emma Coleman Jordan, professor of law at Georgetown University Law Center -- she has helped the American Bar Association evaluate the records of past Supreme Court nominees -- Tom Goldstein, an attorney, Supreme Court analyst and founder of SCOTUSblog.com, and Eugene Volokh, professor of constitutional law at UCLA Law School and publisher of the conservative blog The Volokh Conspiracy.

Welcome to you all.

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GWEN IFILL: Tom Goldstein, we heard the president was asked today about abortion, and he said he would not apply litmus -- litmus tests, which now must be written in a book somewhere that every president has to say that at some point in this process.

Is Gene Volokh right that this will be about hot-button cultural issues, or are there other issues which the court is focused on which will influence the president's thinking? I'm thinking about these free speech issues in cases we have been seeing lately.

TOM GOLDSTEIN, SCOTUSblog.COM: Well, I think we have to separate the question of the substance of the issues.

The president, as a constitutional law scholar, an accomplished lawyer, who knows a ton about these sort of issues, is invested in them, I think cares a lot about the substance.

As to the politics, it is certainly the case the administration wouldn't do something that would generate a thermonuclear war in the Senate and make it easier for Republicans to make real progress in the midterm elections. But I think they did that by not putting the most liberal candidates on the table to begin with.

Stanford law professor Pam Karlan, very respected on the left, isn't being talked about in the short list, for example. So, the group of people that they have, I think, they believe will not generate enormous controversy and wouldn't generate significant political hay for the Republicans in the midterm elections.

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GWEN IFILL: Tom Goldstein, you wrote an article in February in which you predicted -- I'm going to hold you to this now -- you predicted that Justice Stevens would retire. You predicted that he would be replaced by a justice -- by Solicitor General Elena Kagan, who is now at the top of everyone's list. And you predicted she would be seated on this court in October.

Want to take any of that back?

TOM GOLDSTEIN: No, thank you. I think that that is probably where the betting money ought to lie.

We're talking about somebody who...

GWEN IFILL: Why?

TOM GOLDSTEIN: Well, to Eugene's point, she is not someone who has a track record that Republicans would use against her. She has a lot of respect, actually, from conservatives from her time on the Harvard Law School faculty, building up the conservative side of that faculty.

She has experience in building bridges between the left and the right. She is really respected, somebody who was the dean of the Harvard Law School.

What none of the candidates have -- because I thought the professor's point was excellent -- what none of the candidates really have is that deep personal narrative and history that Sonia Sotomayor did you pointed out, that Justice Thomas did.

And, so, the president doesn't yet, on his list, have someone who connects the narrative of kind of the concern about the court being too conservative, being out of touch with individuals, the Citizens United case being too conservative and too pro-corporation, to the eventual nominee.

Elena Kagan doesn't solve that problem, but she does have a lot of other characteristics in her favor.

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GWEN IFILL: Eugene Volokh, Emma Coleman Jordan, and Tom Goldstein, thank you all very much.

TOM GOLDSTEIN: Thank you.