“Justice Souter, for example, prides himself on not resolving any case other than the one before him,” Kmiec told CNSNews.com, “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.”
Kmiec suggested Professor Cass Sunstein of the University of Chicago could be one choice. An advocate of “minimalism,” Kmiec commented, Sunstein prefers “deciding the specifics of one case at a time, and indulging a ruling no greater than necessary to resolve that particular issue.”
When it comes to judicial discretion in interpretation, Kmiec explained:
“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.”
Elena Kagan, the dean of the Harvard Law School and Harold Hongju Koh, dean of Yale Law School, are also possible Obama nominees, though Kmiec added the candidate could also look to those that have law degrees but are not judges, such as attorneys for non-profit and anti-poverty groups.
According to CNSNews.com, Justices Souter and Breyer are considered to be two of the most liberal justices on the court. They have sided with the majority in rulings overturning a partial birth abortion ban, state laws against sodomy and homosexual practices, a ban on prayer before high school football games and a case banning the Ten Commandments from public buildings.