Obama's coming legal battle

Politicians in Washington are gearing up for a partisan political fight to confirm the successor of US Supreme Court judge David Souter.

WASHINGTON // A little more than a week after David Souter announced his retirement from the US Supreme Court, politicians in Washington are gearing up for what is sure to be a partisan political fight to confirm his successor. Mr Souter's retirement could create the first of three vacancies on Barack Obama's watch - several of the nine justices are more than 70 - and is the first chance in 15 years for a Democrat to make a Supreme Court appointment, a task Mr Obama has described as among his "most serious responsibilities as president".

The country's highest court has handed down some of the country's most celebrated - and reviled - decisions, including one in 1954 that said racial segregation in schools was unconstitutional and one in 1973 that gave women the legal right to an abortion. In 2000, the justices resolved the disputed presidential election, effectively installing George W Bush in the White House by a vote of 5-4. The selection of a nominee to the court can result in one of the more contentious confirmation processes in Washington. Nominees face tough questions on such polarising issues as abortion rights, immigration and same-sex marriage, often triggering responses from activist groups across the political spectrum. Justices are appointed for life, and although that makes their selection a way for an administration to put a lasting philosophical stamp on the court, it also raises the stakes for the opposition.

The 1991 confirmation hearing for Clarence Thomas, who was appointed by George H W Bush, was marred by scandal after a former government employee, Anita Hill, testified that he had sexually harassed her when he was chairman of the US Equal Employment Opportunity Commission, a charge he vigorously denied. One of George W Bush's nominees, Harriet Miers, his White House counsel, withdrew her name amid questions about her experience. Some Democrats - including Mr Obama - threatened to filibuster another of the younger Bush's picks, Samuel Alito, because they believed he was too far to the right. Mr Alito was eventually confirmed in a close vote.

Because Mr Obama enjoys a strong majority in the Senate, he may have an easier time with his selection. Even if Mr Obama picks a decidedly liberal candidate, his nominee is unlikely to change the basic makeup of the court. Mr Souter was already among a bloc of four liberal-leaning justices. Still, Republicans are preparing for a battle. Last week, Republicans named Jeff Sessions, a conservative senator from Alabama, as their ranking member on the judiciary committee. He replaces Arlen Specter of Pennsylvania, who recently crossed over to the Democratic Party.

Mr Sessions, who is vehemently opposed to abortion and granting citizenship to illegal immigrants, will take centre stage as the lead Republican questioner of Mr Obama's nominee. Many believe Mr Obama will select a woman or a minority - only two women and two black men have served on the high court. Two of the potential candidates are openly gay. In brief remarks after Mr Souter's announcement, Mr Obama said he is seeking someone who has a "quality of empathy, of understanding and identifying with people's hopes and struggles".

"It is also about how our laws affect the daily realities of people's lives," Mr Obama said. Those comments, however, have worried some Republicans who say it sounds as if Mr Obama is looking for an "activist judge", or a justice whose interpretation of the law is influenced by politics. Orrin Hatch, a Republican senator from Utah on the judiciary committee, took issue with Mr Obama's use of the word "empathy".

"What does that mean? Usually that's a code word for an activist judge," Mr Hatch said. Among those said to be on Mr Obama's shortlist are Elena Kagan, the current solicitor general; Jennifer Granholm, the governor of Michigan, and two federal appeals court judges, Sonia Sotomayor - who would be the first Hispanic - and Diane Pamela Wood. But almost as quickly as the names surfaced, so too did the detractors. In Ms Sotomayor's case, critics have already dug up - and posted on YouTube - a controversial on-camera comment she made at Duke University in 2005. "The court of appeals is where policy is made," said Ms Sotomayor, though she quickly tried to downplay the statement. Critics say the comment shows that policy considerations may contaminate her interpretation of the law.

Gary Marx, the executive director of the Judicial Confirmation Network, a conservative group, is among several activists ready to oppose Mr Obama's nominee. The JCN and other groups have already issued talking points to senators and plan to apply pressure to those involved in the selection process once the nominee is known. "This nomination will clearly put to rest that myth that Obama is a transpartisan leader," Mr Marx said. "That's what Supreme Court nomination fights tend to show clearly: you are either for judicial restraint or for judicial activism."