• By
  • Ashby Jones

scotusWith nearly a filibuster-resistant Senate, President Obama is largely free to fill Justice Souter’s vacated seat with whomever he wants: a moderate liberal, a full-throated liberal in the Brennan or Marshall vein, or anything in between.

President Obama hasn’t thrown out any specific names, so at this point, presumably only his inner sanctum knows what he’s really thinking. But already a couple of threads are emerging, at least among the punditocracy: The nominee is likely to be a woman, possibly one of Hispanic descent; and, ideologically, the nominee is more likely to live in the center-left than in the far left-left.

Among those subscribing to this latter point are Drexel University law professor and Supreme Court expert Lisa McElroy, who told Legal Times’s Tony Mauro that she thinks Obama will be cautious, especially since he may have more vacancies to fill next year or later. “He can name someone much more in line with his party’s views, but not someone who will send conservatives screaming to the hills.”

Harvard Law professor Charles Ogletree seems to agree. “His nominee will not create the proverbial shock and awe,” said Ogletree to the NYT in an article from the weekend that examined Obama’s constitutional philosophy. Writes the article’s author, Jodi Kantor: “Former students and colleagues describe Mr. Obama as a minimalist (skeptical of court-led efforts at social change) and a structuralist (interested in how the law metes out power in society). And more than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions.”

Others foresee a nominee who can argue more left-leaning positions without ruffling too many feathers. Douglas Kendall, president of the Constitutional Accountability Center, a liberal advocacy group with ties to some administration officials, told the WSJ’s Jess Bravin that he expects that Obama “will be looking for a nominee that can thread the needle in the way John Roberts did, pleasing progressives while also appealing to voters in the middle.” Obama’s ideal candidate, adds Harvard’s Laurence Tribe, would “bring majorities together [on the court] around a compelling vision of the law with the elfin touch of someone like [William] Brennan, someone who can move the ocean liner without making terrible waves.”

Another seeming certainty, however: Republican Senators aren’t going to lie down during the confirmation process. Already, they’re pushing for a more moderate selection, possibly one whose ideology aligns with Justice Souter’s. Sen. Orrin Hatch said Sunday on ABC’s “This Week” that “it would be a slam dunk if [Mr. Obama] picked somebody who was center-left like Souter. Souter became very liberal, but he also stood for a lot of principles.”