Breyer, Souter are Obama’s Models for Supreme Court Choices, Advisor Says

October 30, 2008 - 7:47 PM
As president, the Democratic candidate will look for Supreme Court nominees who interpret Constitution for today's realities, Obama advisor says.

Douglas Kmiec, Pepperdine law professor and Obama advisor

( - A top advisor to Barack Obama says, if elected president, the Democratic candidate will look to appoint Supreme Court justices in the mold of Justices Stephen Breyer and David Souter.
“Of course, he’s interested in people of integrity and competence, that’s a given,” Pepperdine University law professor Doug Kmiec told “He’s also indicated that he’s most attracted to the kind of justice represented by Justice Breyer and Justice Souter.”
Kmiec, who supports Obama and has been serving as a campaign “surrogate” for the Illinois Democratic senator, said Obama admires the qualities Souter and Breyer represent.
“These justices are individuals who tend to examine closely the consequences of legal decisions in terms of their effects on the larger society, as well as to examine a legal outcome in terms of the specifics of a particular record.”
“Justice Souter, for example, prides himself on not resolving any case other than the one before him,” Kmiec said, “whereas Justice Breyer has a little bit more of an academic scope – in that he not only decides the case in front of him in a pragmatic way, but also tries to analyze what that practical solution would mean for related areas of the law – for example, he’s an expert in administrative law.”
Obama, a former law instructor at the University of Chicago, will likely turn to people he’s familiar with, Kmiec said.
“I would think, very high in his estimation, is Professor Cass Sunstein of the University of Chicago, who is really one of the nation’s foremost scholars of the Constitution,” Kmiec said.
Sunstein’s approach to the Constitution is “not unlike” the approach of Breyer and Souter.
“He’s famous for a theory called minimalism, which is a fancy academic name for deciding the specifics of one case at a time, and indulging a ruling no greater than necessary to resolve that particular issue.”
Kmiec said Obama recognizes that “there is always an area of discretion in the law” – that judges have leeway sometimes in how they interpret laws. 
“Sen. Obama has said that within the context of the language, where that place of discretion always exists, he would want that discretion to be exercised by someone who has empathy with those who are disabled, or those who are old, or those who are at the margins of society, especially where the statute is constructed to give remedy to their concerns.”
Other names being mentioned in the Obama camp, he said, are Elena Kagan, the dean of the Harvard Law School and Harold Hongju Koh, dean of Yale Law School.
But Kmiec also said it is entirely possible that Obama may turn to people who have law degrees, but who are not already judges – including in that category attorneys for non-profit community and anti-poverty groups like the kind Obama himself represented in the 1980s.
Justices Souter and Breyer, meanwhile, are considered to be two of the most liberal justices on the court who embrace what’s known as the “Living Constitution” theory and have frequently united with other court liberals in 5-4 decisions on controversial issues.
Some of those decisions are – Stenberg v. Carhart, a 2003 decision that struck down state laws against partial-birth abortion; Lawrence v. Texas, the 2003 decision overturning state laws against sodomy and homosexual practices; the 2000 Santa Fe (Texas) Independent School District case banning prayer before high school football games and the 2005 McCreary County, Ky. v. American Civil Liberties Union of Kentucky case banning the Ten Commandments from public buildings unless part of historical displays.