Obama sees court pick as smart with common touch

WASHINGTON -- On the verge of choosing his first Supreme Court nominee, President Obama has already provided a profile of the person he is likely to pick: an intellectual heavyweight with a "common touch," someone whose brand of justice means seeing life from the perspective of the powerless.

Obama is expected to announce his nominee this week, as early as Tuesday. His words, his young presidency and his own life experience reveal what the nation should expect -- and help explain how the president is making a decision that will endure long after he leaves office.

"You have to have not only the intellect to be able to effectively apply the law to cases before you," Obama said in an interview carried Saturday on C-SPAN television. "But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living."

Tangibles, intangibles

That quality -- Obama calls it empathy -- is a huge factor in picking a successor to retiring Justice David Souter. Among the others Obama is weighing: judicial philosophy, intellectual sway, gender, ethnicity, age and the politics of Senate confirmation.

He is expected to choose a woman, and perhaps someone who is Hispanic, but insists he will not be "weighed down" by demographics.

Ultimately, it may come down to an intangible -- how well the nominee resonates with Obama. A president's tenure will last at most eight years, but his choice of a Supreme Court nominee could affect the course of the nation for a generation, and his personal legacy for even longer.

The six people known to be under consideration by Obama are U.S. Appeals Court judges Sonia Sotomayor and Diane Wood, Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and California Supreme Court Justice Carlos Moreno.

It remains possible that Obama could nominate someone else who would surprise the legal, political and media communities tracking his deliberations.

His approach, though, is methodical.

He consulted senators on the Judiciary Committee, without revealing much. His aides gave an audience to interest groups, but warned them that Obama did not want to be lobbied. Obama is conferring with a circle of advisers, but is heavily involved in his own review as a lawyer who loves constitutional law.

"He makes the decision himself, but I think he welcomes arguments and counter-arguments from other people," said David Strauss, a professor at the University of Chicago's law school who knows Obama from when they both taught there. "He wants to hear, `What are the problems with going this route?' "

Obama says he wants to give the Senate a traditional 70 days to confirm his nominee -- which, by the calendar, means he plans to announce a pick this week.

Tucked away with family at the Camp David presidential retreat for most of the holiday weekend, Obama has not made a decision yet, aides say.

Here is what he is weighing:

-- Gender. Five of the six people known to be under consideration by Obama are women. The nine-member court now has only one woman, Ruth Bader Ginsburg, who herself has said the court needs more women. Gender is a key factor, but Obama has publicly spoken of picking the best nominee, period.

-- Intellectual prowess and personality. Some justices rule for years with quiet precision; others help shape the debate. On a court with a 5-4 split, Obama may decide to go with someone deemed to have the oratorical ability to match up with conservatives such Chief Justice John Roberts and Justice Antonin Scalia.

"Having a giant on the bench -- somebody who has the personality to help drive the decisions -- I think that's valuable," said Bill Marshall, a law professor at the University of North Carolina at Chapel Hill who worked in President Clinton's White House. "I think (Obama) gets that from being a constitutional law professor. He knows about the importance of those interpersonal skills."

-- Philosophy. Obama favors abortion rights, and although he has spoken against applying a so-called litmus test, he says he will not nominate someone who does not believe in a right to privacy. Obama is also inclined to pick someone who shares his view that the Constitution is to be interpreted in light of today's realities, not those of the founders.

-- Age. Obama, who is 47, is likely to favor someone closer to his age who could serve on the court for decades. Seven of the nine justices are at least 60 years old, and most are at least 70. But Roberts is only 54, and the other justice named by President George W. Bush, Samuel Alito, is 59.

-- Diversity. Obama is poised to please or dismay leaders of the Hispanic community with his choice. The court has never had a Hispanic justice. At least two of Obama's finalists are Hispanic. "The power and legitimacy of our legal system depends on the trust that the population has in that system," said Ramona Romero, president of the Hispanic National Bar Association. "It is important that Hispanics see themselves reflected in all of our institutions."

-- Experience. The current court is composed entirely of former federal appeals court judges. Such a route provides a base of decisions which could help inform the president and the Senate -- or make for trouble in a confirmation. Obama is considering Sotomayor and Wood, who have gone that traditional path. But he has also spoken favorably of finding someone outside the court system, which could bode well in particular for Granholm and Napolitano.

-- Compelling narrative. Obama may choose a nominee who doesn't just understand hard times but has lived them, which could point toward Sotomayor, the daughter of Puerto Rico immigrants, who grew up in a Bronx housing project and dealt with family struggles. Or Obama could choose to make a bold splash by choosing someone like Granholm, who leads a state coping with a battered economy and would come to the job with a prominent political personality.

-- Confirmability and cooperation. Barring a huge problem, Obama's choice is expected to be confirmed in the Senate, where Democrats hold 59 votes. But part of the political calculation is how smoothly the nominee will get through. At a time when his agenda is packed with big domestic items and he needs help from both parties, Obama may not want to spend capital needlessly on a more contentious choice.