Obama, McCain would look to women, Hispanics for Supreme Court

2008-07-16 05:55:18 GMT       2008-07-16 13:55:18 (Beijing Time)       SINA.com

Gender and race will loom large when Barack Obama or John McCain has a chance to fill a U.S. Supreme Court vacancy.

With only one woman and no Hispanics on the court, the next president will feel pressure -- and perhaps a desire -- to diversify the nine-member court.

"Regardless of who is elected president, there will be strong sentiments in favor of appointing a woman or someone who would reflect other elements of diversity such as an Hispanic or African-American," said Theodore Olson, a former U.S. solicitor general who heads McCain's advisory committee on judicial appointments.

Six justices are 68 or older, so the next president might get multiple appointments. Republicans have the most to gain because the likeliest initial retirees -- John Paul Stevens, 88, Ruth Bader Ginsburg, 75, and David Souter, 68 -- are members of the progressive bloc in the divided court.

McCain has promised to nominate justices in the mold of President George W. Bush's appointees, Chief Justice John Roberts and Justice Samuel Alito, potentially shifting the outcome in cases on abortion, race and religion. Last month, a single vote would have changed 5-4 decisions barring capital punishment for child rape and expanding the rights of Guantanamo Bay inmates.

For Obama, the court's demographic realities may push four women -- appeals court judges Sonia Sotomayor, Kim McLane Wardlaw and Diane Wood and Harvard Law School Dean Elena Kagan -- to the top of his short list.

Wood and Kagan have the advantage of being known entities to Obama, 46, an Illinois Democrat. Both worked alongside him on the faculty at the University of Chicago Law School.

Smart Judge

Wood, 58, a judge on the 7th U.S. Circuit Court of Appeals in Chicago, is one of the brightest minds on the bench, according to appellate lawyer Tom Goldstein of Akin Gump in Washington.

"If you ask who is the most talented female, the near unanimous answer may be Diane Wood," said Goldstein, whose Scotusblog Web site tracks the court. "She has a lot of juice."

Still, Wood's age may work against her, as Democrats seek a nominee who can serve for several decades. Roberts was 50 and Alito 55 when nominated in 2005.

Kagan, 48, won plaudits for smoothing over some of the ideological tensions that plagued Harvard Law School before she became dean in 2003. Faculty member Charles Fried, who was President Ronald Reagan's top Supreme Court lawyer, has touted Kagan as high court material.

Kagan is "widely respected on both sides of the aisle," said Rachel Brand, a former Bush Justice Department official who shepherded the Roberts and Alito nominations through the Senate.

New York Judge

Sotomayor and Wardlaw are both 54-year-old Hispanics appointed to their current posts by President Bill Clinton. Democrats suggested Sotomayor, a judge on the 2nd Circuit in New York, as a possible Bush nominee when Sandra Day O'Connor announced her retirement in 2005.

Wardlaw, a judge on the San Francisco-based 9th Circuit, might have been the frontrunner for the high court had Hillary Clinton captured the Democratic nomination and the presidency. Wardlaw and her husband are longtime political supporters of the Clintons.

Other Obama candidates include Merrick Garland, 55, a federal appellate judge in Washington, and Seth Waxman, 56, formerly the Clinton administration's top Supreme Court lawyer. Their chances might improve with a second or third vacancy, after Obama has added another woman to the court.

"A court for the United States of America that has only one woman on it is an absurdity, and I'm sure that Senator Obama shares that view," said one of his top legal advisers, Harvard law professor Laurence Tribe.

Previously Considered

McCain's choices will be constrained should the Democrats expand their 51-49 Senate majority. The nonpartisan Cook Political Report forecasts a Democratic gain of four to seven Senate seats.

"If a Republican president is making a selection with a Democratic Senate, confirmation will be a big issue," Brand said.

That dynamic might push McCain toward a compromise, such as Maureen Mahoney, 53, a Washington appellate lawyer at Latham & Watkins. Her appointment would make some conservatives uneasy, because she lacks a track record as a judge and argued in favor of racial preferences in college admissions in a 2003 Supreme Court case.

At the same time, Mahoney has Republican credentials. She serves on McCain's legal advisory committee and defended the high court ruling that sealed Bush's election in 2000.

Female Judges

Other women likely to appear on McCain's short list include federal appeals court judges Diane Sykes, 50, Consuelo Maria Callahan, 58, and Reena Raggi, 57. Callahan is Hispanic.

McCain, a 71-year-old Arizona Republican, might also consider a sitting senator, possibly 56-year-old John Cornyn of Texas, or Judge Michael McConnell, 53, whose nomination by Bush to the Denver-based 10th Circuit received some Democratic support.

Still, O'Connor herself has said the court needs another woman. Calls for another female justice have grown even louder than those for the court's first Hispanic, Brand said.

Should McCain be elected, "there will be a huge amount of pressure for him to nominate another woman," Brand said.

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