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Zenitha Prince, NNPA, Afro-American Newspapers
Published: 07 May 2009

WASHINGTON (NNPA) - The replacement of outgoing Supreme Court Justice David Souter may have little to no impact on the civil rights agenda, political and legal analysts and activists say.

"Really, until the conservative members begin to resign from the court you're not going to see much of a change," said University of Maryland law professor Sherrilyn Ifill.

"Unless," she added, "the person who the president chooses is a young, powerful person, who has the kind of personal story, intense communication skills and intellectual heft to really influence Justice Kennedy, who is usually the swing vote in the court."

As things stand, civil rights issues are usually decided with a 5-4 vote ratio in favor of more conservative sentiments in the court. Justice Souter, who many described as a moderate ideologue, is often aligned with civil rights interests.

"Justice Souter is—which you could see when you looked at the hearing on the Voting Rights Act last week—in the moderate wing of the court," Ifill said. "He understands the Voting Rights Act, he understands civil rights issues and I'm sure the person President Obama picks will also understand civil rights issues and have the sort of empathy he has talked about."

There are some, however, who say the president's choice should be found further left of Justice Souter's position on the ideology spectrum.

Though a liberal choice will not have much of an effect, said political analyst Ron Walters, Obama should "not give in to Republicans" by choosing a moderate.

"The objective of the administration ought to be to rebuild the liberal constituency of the court just as the Republicans set out to build the conservative base of the court and succeeded," he said. "Democrats have to correct that historic imbalance."

While the president's choice may not stack the odds in their favor, civil rights activists said, it most likely will not make it worse—and that's important given the issues looming on the legal landscape. "It means an awful lot," said NAACP Washington Bureau Chief

Hilary Shelton of the president's impending decision. "With the stacking of the Supreme Court with right-wingers…having someone replace Justice Souter that has a balanced approach to interpreting the law is crucial."

Some of those ongoing issues include the Voting Rights Act, criminal justice, the death penalty, abortion, Fourth Amendment rights as it pertains to government wiretapping and searches and the scope of judicial and executive powers. "We need to have someone with a proven record of protecting America's civil rights [who is not] an activist judge," Shelton said. "We want to make sure we get someone who will interpret the law and the Constitution as it was intended in a way that protects all Americans in the context of our life today."

In making the announcement of Justice Souter's retirement Friday, the president said he would consult with members of both parties to find a nominee that has "a sharp and independent mind," that is respectful of the Constitution and understands the limits of the judiciary. And, more importantly, he said, he is seeking someone who has "empathy."

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives – whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation," said the former constitutional law professor.

Diversity should be another deciding factor in the president's choice, many have said. "It would be nice if it was an African American who was in sync with the rest of the African-American community but I don't think he'll do that," Walters said, adding that appointing a Hispanic is "extremely seductive" because of the political cache that decision offers.

"Just looking towards the next election, it would be good for him, in a historic sense, to put the first Hispanic and a woman on the court," the political analyst said. "It would help to solidify the Hispanic vote and the women's vote."

One rumored candidate, New York federal judge Sonia Sotomayor, would satisfy both qualities. Other names in the wind include: Jennifer Granholm, Michigan governor and former attorney general; Elena Kagan, Obama's solicitor general and former dean of Harvard Law School; Leah Ward Sears, chief justice of the Georgia Supreme Court and adjunct professor at Emory University School of Law; Ann Claire Williams, who serves on the U.S. Court of Appeals for the 7th Circuit and formerly served as a U.S. District Court judge in Illinois and Pamela S. Karlan, a law professor at Stanford Law School, a leading legal scholar on voting rights and former attorney with the NAACP Legal Defense Fund.

Harold Koh, the former dean of Yale Law School, is perhaps the only male candidate whose name has been thrown in the cap.

Most seem to agree that the choice must be female. "We only have one woman on the bench right now and that is not reflective of the country or of the legal profession," Ifill said, adding 50 percent of law school students are women. "The perspective of a woman is very much needed in the court."


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