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Prominent Bay Staters On Short List To Replace Souter02:14
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Then-President George H.W. Bush announces his nomination of appellate judge David Souter to a seat on the Supreme Court, July 24, 1990. Souter's retirement will give President Obama his first chance to name a member of the high court. (AP Photo)
Then-President George H.W. Bush announces his nomination of appellate judge David Souter to a seat on the Supreme Court, July 24, 1990. Souter's retirement will give President Obama his first chance to name a member of the high court. (AP Photo)

Harvard's former law school dean is thought to be on the short list of potential replacements for retiring U.S. Supreme Court Justice David Souter.

Former Dean Elena Kagan is now the U.S. solicitor general, appointed to that job by President Obama earlier this year. Other names being mentioned include Harvard Law professor Cass Sunstein and Gov. Deval Patrick.

For more about the process the president will go through in figuring out a short list, WBUR spoke to Carl Tobias, a professor at the University of Richmond Law School.

Give us your perspective on the presidential decision-making process, and what sort of person the president will be looking for.

PROF. CARL TOBIAS: Well, I mean there's a number of qualifications that presidents always use. And they're pretty standard. They go to intelligence, to independence, to judicial temperament — those kinds of qualities you would expect anyone to have.

And then there are other considerations: timing of when in the election cycle, for example, someone chooses to retire — and it's early, so that makes it somewhat easier — it's always more difficult during an election year.

So, those are the factors that play in, and then, of course, the composition of the existing court and what the new justice would add to that court.

How does a president do the dance of trying to choose a person who reflects his own beliefs, while not imposing a judicial litmus test on liberal versus conservative issues?

TOBIAS: Well, some of those qualifications I just mentioned are relatively neutral. But the president is able, under the Constitution, to name a broad swath of people.

And, after all, the president was elected, so the president may choose to say that he has a mandate of some sort, and yet wants to avoid appearing as if there is some litmus test on specific issues.

Give us a couple of names you think will be on or near the top of the president's short list, and why.

TOBIAS: Well, certainly the names you talked about just a minute ago. Dean Kagan has already been confirmed, is highly regarded, was perceived as an excellent dean at Harvard, and so she would certainly be very high on the list.

I think Professor Sunstein is one of the leading academics in law schools today, and Gov. Patrick, also, I think is very close to the president — was instrumental in his campaign. So all three of them.

Typically, and at the present, all of the justices are former appeals court judges. So that's another place where the president would look. Judge Diane Wood of the Seventh Circuit, who taught at Chicago; Judge Sonia Sotomayor of the Second Circuit would be another possibility of the names that have been mentioned so far.

Some people think that the president is likely to nominate a woman and/or a proven jurist. Might that make Gov. Patrick an unlikely nominee, as he's not the right gender and, while he held a high-ranking Justice Department post and was a successful corporate lawyer, he hasn't been a judge?

TOBIAS: Well, as I said, perhaps there's something to be said for diversity in terms of the composition of the Supreme Court. And so it might be valuable to have an elected official. The last elected official was Justice O'Connor, who served in the senate in Arizona.

And so it might be wise to have some balance. So I wouldn't count out the governor at this point.

Carl Tobias is a professor at the University of Richmond Law School.

This program aired on May 1, 2009.

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