Court to test Obama's talents

Lucile Malandain

Washington - President-elect Barack Obama may have the rare chance to appoint two judges to the Supreme Court, giving the former law professor an opportunity to make a further lasting mark on American society.

Already observers are weighing in on what Obama could do in the key decision on replacements for the highest court in the land.

"It is quite likely he would choose a woman or a minority," said Nathaniel Persily, a law professor at Columbia University in New York.

"If he could find a Hispanic woman, that would be ideal, the best choice," he added.

Only two women have served on the Supreme Court, and two African-Americans have succeeded one another in the same seat, but never has an judge with a Latino background been appointed.

Hispanics are an ever-growing demographic in the United States, making up 15% of the population.

But beyond the race or sex of the candidate, observers are gearing up for appointments of politically progressive judges to the bench to replace the older liberals sitting on it today.

'His pick might be radical...'

John Paul Stevens, appointed by president Gerald Ford, is 88 years old, and is expected to resign soon.

The nine justices are appointed for life.

Widely considered to be on the liberal side of the court, Stevens's replacement with another liberal would maintain the bench's fragile balance.

Currently four conservatives, four liberals, with the moderate Anthony Kennedy holding the middle ground, compose a balance Obama is expected to sustain.

Ruth Bader Ginsburg, 75, appointed by president Bill Clinton, is another liberal lifer also expected to resign within Obama's first term in office.

During Obama's campaign the Democrat hinted at what he expected of his appointees, and certainly could surprise conservative commentators expecting him to name someone more radical to the post.

"His pick might be radical, not in the ideology but in the background," noted Persily.

Obama could pick someone who has not made a career in the judicial system, for example a politician or law professor, he added.

'Legislating from the bench'

The president-elect has said he would take his own experience into account in making the decision.

"I taught constitutional law for 10 years and when you look 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," said Obama in a interview during his campaign.

Traditionally the two major parties, Democrats and Republicans, have split firmly on their judgment of what the Supreme Court can and can't do for the evolution of American society.

Republicans have forcibly lobbied for judges who strictly adhere to the constitution, and criticised Democrat appointees who attempt to advance societal norms in a way they call "legislating from the bench".

A slew of controversial issues such as gay marriage, abortion rights, gun ownership, the death penalty, privacy and the internet are all likely to resurface in coming years.

Many in the weakened Republican party fear the more liberal judges could make sweeping changes in law that could serve as precedent throughout the nation.

But in the hubbub surrounding Obama's projected appointments, his friend Cass Sunstein, a pre-eminent American legal scholar at Harvard University, Massachusetts - where Obama himself studied - noted a fact often overlooked.

"The first thing to know about Obama, which hasn't gotten sufficient attention, is that he is himself appointable to the Supreme Court," Sunstein said.

"He is a constitutional specialist who has taught for many years. There's a guarantee that we'd get someone of the first intellectual rank."

"Not Harriet Miers," he added, referring to the ultra-conservative lawyer nominated by President George W Bush, and who was withdrawn when criticized across the political spectrum for never having served as a judge and being ill-prepared and uninformed.

- AFP