Obama sees Justices Breyer and Souter as judicial models

Justice Stephen Breyer / Justice David Souter
Justice Stephen Breyer / Justice David Souter


Doug Kmiec, Pepperdine University law professor and adviser to Democratic presidential candidate Sen. Barack Obama, has said in an interview that Obama’s models for Supreme Court nominees are Justices Stephen Breyer and David Souter.

Kmiec told CNSNews.com that Obama is interested in people of “integrity and competence,” adding “He’s also indicated that he’s most attracted to the kind of justice represented by Justice Breyer and Justice Souter.”

According to Kmiec, Obama admires certain qualities of the justices.

“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 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.