President Barack Obama has made one appointment to the Supreme Court of the United States, that of Judge Sonia Sotomayor to fill the vacancy created by the retirement of Associate Justice David H. Souter. Sotomayor was confirmed by the United States Senate on August 6, 2009. Supreme Court watchers have further speculated about the possible retirements of other justices, including 89-year-old John Paul Stevens, the oldest member of the court, and 76-year-old Ruth Bader Ginsburg, who has been diagnosed with pancreatic cancer.
The problem I face ... is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those 5 percent of hard cases, the constitutional text will not be directly on point.... In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, ... in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.... The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.
In explaining his opposition to Samuel Alito, Obama further evaluated the qualities he found important in a Supreme Court justice:
I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character. But when you look at his record — when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights.
In a speech on July 17, 2007 before the Planned Parenthood Action Fund, he elaborated even more:
I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there's another vision of the court that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process. ... And we need somebody who's got the heart — the empathy — to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old -- and that's the criteria by which I'll be selecting my judges.
In November 2007, Obama was asked about the kind of justices he would appoint to the Supreme Court. He responded:
I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.
. . . [S]ometimes we're only looking at academics or people who've been in the [lower courts]. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.
Later in March 2008, while on the campaign trail in Ohio, Obama again addressed the traits he would look for in a Supreme Court justice, suggesting he might leaven legal scholarship with practical political experience. He held up Earl Warren, a former governor of California who later became Chief Justice, as an example. Mr. Warren, he said, had had the wisdom to recognize that segregation was wrong less because of precise sociological effects and more so because it was immoral and stigmatized blacks:
I want people [like Earl Warren] on the bench who have enough empathy, enough feeling, for what ordinary people are going through.
Later, however, Obama seemed to step away from the example of Warren. In an interview with the editorial board of the Detroit Free Press on October 2, 2008, Obama said:
There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, (Thurgood) Marshall. But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today . . . In fact, I would be troubled if you had that same kind of activism in circumstances today.
. . . [W]hen I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.
I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.
That, I think is the kind of justice that I’m looking for — somebody who respects the law, doesn’t think that they should be making law ... but also has a sense of what’s happening in the real world and recognizes that one of the roles of the courts is to protect people who don’t have a voice.
In the third and final presidential debate with Republican nominee John McCain on October 15, 2008, Obama also implied that he would look for a Supreme Court nominee with previous judicial experience:
I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.
Demographic considerations have played into the appointment of Supreme Court justices since the institution was established. Starting in the twentieth century, these concerns shifted from geographic representation to issues of gender and ethnicity.
Prior to the 2008 presidential election, many court watchers suggested that the next president would be under significant pressure to appoint another woman or ethnic minority to the court. The case for naming more women was particularly widespread given the recent retirement of Sandra Day O'Connor and the rapidly changing demographics of the legal community, with women now accounting for about a fifth of all law partners and law school deans, a quarter of the federal bench, and nearly half of all law school graduates. Shortly before the election, for example, NPR reported, "Most observers of the Supreme Court agree about one thing: The next nominee is likely to be a woman". Given the relative youth of the most recent Republican appointments, it was also noted that Democrats had, "a strong incentive to pick younger justices this time around". Furthermore, after Obama's presidential election victory, Hispanic legal interests groups such as the Hispanic National Bar Association began urging Obama to nominate a Hispanic justice.
On May 26, 2009, Obama announced Second Circuit appeals court judge Sonia Sotomayor as his choice to replace retiring Associate Justice David H. Souter. Sotomayor's nomination was formally submitted to the United States Senate on June 1, 2009, when the 111th Congress reconvened after its Memorial Day recess. Sotomayor was confirmed by the Senate on August 6, 2009 by a vote of 68-31, and was sworn in as an Associate Justice on August 8, 2009.
Long before the election of President Obama, Associate Justice David H. Souter had expressed a desire to leave Washington, D.C. and return to his native New Hampshire. The election of a Democratic president in 2008 made Souter more inclined to retire, but he did not want to create a situation in which there would be multiple vacancies at once. Souter apparently became satisfied that no other justices planned to retire at the end of the Supreme Court's term in June 2009. As a result, in mid-April 2009 he privately notified the White House of his intent to retire from the Supreme Court at the conclusion of its business for that term. Souter formally submitted a resignation letter to Obama on May 1, who later that day made an unscheduled appearance during the daily White House press briefing to publicly announce Souter's retirement.
Obama began the process of selecting a Supreme Court nominee shortly after his election in 2008, long before a Supreme Court vacancy was actually known. White House Counsel Greg Craig helped assemble an early list of possible names. Once the White House had learned of Souter's plans to retire, two members of the Vice President's staff, Chief of Staff Ron Klain and Counsel Cynthia Hogan, ran the daily operations of the selection process.
Within a week of Souter's announcement the White House had formalized its short list of candidates to replace Souter, with Judge Sonia Sotomayor of the Second Circuit, Judge Diane Pamela Wood of the Seventh Circuit, and Solicitor General Elena Kagan reportedly leading contenders for the nomination. Homeland Security Secretary Janet Napolitano, California Supreme Court Justice Carlos Moreno, and Michigan Governor Jennifer Granholm were also reportedly on the short list of candidates under serious consideration by the White House. Chief Justice Leah Ward Sears of the Georgia Supreme Court, Judge Merrick B. Garland of the United States Court of Appeals for the District of Columbia Circuit, and Judge Ruben Castillo of the Federal District Court for the Northern District in Illinois were also on the final list of nine candidates.
Obama had not interviewed any of the candidates as of May 18, but that week saw a flurry of activity and speculation surrounding possible interviews of candidates. Jennifer Granholm attended a CAFE standards meeting at the White House on May 19 and spoke with Obama, but officials would not comment on whether the two discussed a potential court appointment. On May 20, Diane Wood and Elena Kagan attended a conference on judicial independence at Georgetown University hosted by retired Associate Justice Sandra Day O'Connor. Ultimately, Obama winnowed his list to four individuals, all of them women: Sotomayor, Wood, Kagan, and Napolitano. Obama conducted hour-long one-on-one interviews with the four finalists, meeting with Wood and Kagan on May 19, and Sotomayor and Napolitano on May 21. Vice President Joe Biden also interviewed the four finalists.
Obama telephoned Judge Sotomayor at 9 p.m. EST on May 25 to alert her that she was his choice. Later that night, he called the other three finalists and informed them of his decision. Obama announced the nomination the next morning in the East Room of the White House in a press conference alongside Sotomayor and Joe Biden.
Following is a list of individuals who have been mentioned in various news accounts as the most likely potential nominees for a Supreme Court appointment under Obama: