Three. That may be the number to pay close attention to as we await President Obama’s choice to replace Justice John Paul Stevens on the Supreme Court. And it may also be the best clue as to why President Obama will likely choose a woman to fill the vacancy. Two senior administration officials say the prospect of adding significant gender diversity to the high court has been a major consideration for Obama. Obama has privately told friends and aides, these sources say, that he would like nothing more than to be the first president to elevate three women to the bench.
The appeal of this approach is clear. Despite the political media’s short-term view of SCOTUS nominations, these are the moments when all presidents think about their legacies and their ability to shape history. Because the justices who already retired or are likely to soon (David Souter, John Paul Stevens, and Ruth Bader Ginsburg) are also the most liberal, Obama probably won’t be able to fundamentally alter the ideological mix of the court. So if he can’t change the court’s direction, he’ll want to change the way it looks. If he leaves office with three, or maybe even four, women on the Supreme Court bench, Obama will cement his place in history as a powerful guardian of the interests of American women.
Obama is a long-ball player, but that doesn’t mean he isn’t also thinking about his picks’ more immediate impact. Putting three or more women on the court will help solidify a key part of the Democratic base. The gender gap in the 2008 election was a yawning 13 points in Obama’s favor. But Obama only won the male vote by a single point. After a tough first year politically, Obama desperately needs to hold onto women voters. If women have any lingering doubts about Obama after his primary brawl with Hillary Clinton, they will fade with every female pick he makes.
Now, what do these considerations mean for the White House’s short list? First, the caveat: by all accounts, Obama has not made up his mind yet. And we know from the Sotomayor nomination that Obama won’t know for sure until he’s conducted all of his interviews and spent serious time reading up on all the potential candidates. Nevertheless, signs continue to point to Solicitor General Elena Kagan. She would obviously satisfy the gender requirement, but there is another factor (beyond her stellar legal mind) that would explain Obama’s affinity for Kagan. As the dean of Harvard Law School, she was praised for having built bridges to conservative members of the faculty. The parallel to Obama, who as president of the famously fractious Harvard Law Review focused his energies on finding common ground between warring ideological factions, surely isn’t lost on him. Bridge building in the ivory tower doesn’t necessarily lead to coalition building on the bench, one of Obama’s key criteria in a justice.
On paper, it’s pretty clear that of the short-listers Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit has the best record of bridging the divide between liberal and conservative jurists. And if Obama is concerned about the number of picks he’ll get, he may be more inclined to pick a judge—like Garland—with a proven ability to win over conservative jurists. But an emerging conventional wisdom on Garland, who would be the least-controversial pick because of his reputation as a centrist, is that Obama should keep him in his back pocket for another time when the Democrats won’t have as big majority in the Senate. “He’s the guy you go with when you only have 51 Democrats in the Senate,” says one knowledgeable senior administration official.
For her part, Diane Wood, of the U.S. Court of Appeals for the Seventh Circuit, appears to have lost some altitude; her paper trail includes a number of abortion decisions, which will undoubtedly serve as lightening rods for the right.
A sentimental favorite who probably won’t make it (at least this time): Homeland Security Secretary Janet Napolitano. Obama is a huge fan, for her competence, real-world sensibilities, and her ability to govern an ungovernable bureaucracy. But that last quality, above all, is why he’d be reluctant to put her on the bench. He’d have an awfully hard time replacing her at Homeland Security.
In the end, no one should count out the Michelle Factor. In her only substantive comments on the Supreme Court vacancy during a NBC interview, the first lady gave a nod to gender diversity on the bench, though she carefully included racial and socioeconomic diversity as well. So when it comes to delivering for powerful constituents, both inside and outside the White House, the president may find no better way than to keep picking women for the court.