Obama's Pick, From The Start

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The process ended where the President started.

In November, a few days after he was elected President, Barack Obama convened some of his most trusted advisers in a private meeting for an even more closely-held topic. He wanted to talk about the Supreme Court.  Obama arrived, armed with a list of judges and academics he wanted his team to consider. At the top of the list, according to someone with direct knowledge of the meeting, was Judge Sonia Sotomayor.

Precisely how Obama came to admire Sotoamayor is still unknown at this point. A senior administration official said this morning that Obama had not met the judge until this past Thursday, when he interviewed her in the Oval Office.   

"He has certainly known her by reputation for a long time," said Valerie Jarrett, a senior Obama adviser.

When David Souter informed the White House on May 1 that he would retire, Soyomayor remained at the top of the list. About a dozen White House officials were privy to Obama's thinking on the subject, and they were sworn to secrecy.

In meetings with Hispanic groups, White House counsel Gregory Craig hinted that Obama knew he wanted Sotomayor to take the job but did not yet know whether he would pick her. If Sotomayor did not survive the vetting process, or if, during the pre-decision period, he might decide to pick someone else. Obama had also told White House officials that he could be talked out of picking Sotomayor if they convinced him that she wasn't the right person for this moment in time.

It turns out, though, that Obama's advisers loved the idea of picking Sotoamyor just as much as Obama did. The pick, they believed, would tell a story about justice in the 21st century. Her hard-scrabble upbringing, combined with her tough-as-nails realism, combined with her respect for the rule of law, combined with her academic achievements, combined with her -- yes -- identity as an Hispanic female -- provides a walking, talking counterpoint to the clubby formalism of the modern Supreme Court.

When, at the start of the process, Sotomayor was subjected to some bad press, White House officials were caught in a dilemma: they did not want Hispanic groups to defend her as an Hispanic -- that would make it seem too obvious that the President had chosen her in no small part because she was an Hispanic -- but they did not like to see her intellect and temperament go unquestioned. They hoped that Sotomayor allies, like former clerks, would rise to her defense. A White House official privy to the internal discussions about the pick e-mailed this article to several leading judicial activists as if to say -- we can't defend her, but you can.

As a constitutional law professor, senator, candidate and President, Obama had come to view the Supreme Court as Mount Olympus, with many of its denizens too unconnected from real life to think through the consequences of their decisions. He had never subscribed to an "originalist" or "textualist" view of interpretation, finding the intellectual and moral underpinnings of those philosophies to be bankrupt. He also came to see the Roberts Court as activist and more conservative.

Liberals had played 30 years worth of defense after the Warren Court era ended, and they did not know how to articulate a judicial vision for the 21st century. Sotomayor is, in many ways, the antidote, a post-modern progressive justice for an age where the president of the United States is black.

A pragmatist, Obama hopes Sotomayor's mode of decision making will influence the key swing vote on the court, Justice Anthony Kennedy. The President told several officials that he looked to the examples of Justice Sandra Day O'Connor and Justice William Brennan -- the first, a moderate incrementalist who became the swing vote quickly, and the second, a charming liberal who was able to pull the court to his side at key moments.  

For the consumption of the political elite, talking points provided to allies emphasize that Sotomayor is known as a "moderate on the court," agreeing with conservatives more frequently than she disagrees with them.  This is a bit of a red (or blue) herring -- circuit court judges often agree with similarly empaneled jurists.  

In reality, Obama is sending a few different messages to a few different audiences. To liberals, the pick sells itself -- a progressive superstar with fantastic academic credentials. Obama is addressing conservatives only because he wants to get his judge confirmed by a wide margin. To the rest of the country, the Sotomayor pick will embody Obama's judicial philosophy -- going beyond theory to, as the talking points say, "ensure consistent, fair, common-sense application of the law to real-world facts."

"I strive never to forget he real world consequences of my decisions," Sotomayor said today.

On Thursday, Obama was in a jaunty mood after he interviewed Sotomayor. A few groups of reporters were meeting in the West Wing with senior officials, and the President decided to stop by. He was an in expansive mood and riffed about the direction of the court. He did not tip his hand about the interview or the identity of his pick, and he asked that his musings be shared off the record. But it was clear that he was excited about how his pick would energize the court.

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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