Sessions Favors Judge for High Court

Sessions Favors Judge for High Court

By JESS BRAVIN

MAY 16, 2009

WASHINGTON -- The Senate Judiciary Committee's top Republican said he would rather see President Barack Obama nominate a lower-court judge to fill the Supreme Court vacancy, in contrast to some Democrats who would prefer a nominee from outside the judicial realm.

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"Judicial experience is a very valuable thing," Alabama Republican Sen. Jeff Sessions said in an interview. The candidate should also have "significant courtroom experience" in different areas of law, and have "won respect of colleagues and judges. That's what you do on the court."

The Judiciary Committee's chairman, Vermont Democratic Sen. Patrick Leahy, earlier this week suggested that Mr. Obama should look "outside the judicial monastery" for a nominee with "real-life experience, not just as a judge."

Sen. Sessions said, "There are a lot of people who have experience in the world, but I wouldn't think they would be a Supreme Court justice."

Sen. Sessions was among four Senate leaders who met on Wednesday with Mr. Obama to discuss the nomination, expected after Memorial Day. Mr. Sessions said neither side discussed any potential candidates, and he declined to comment on any of the oft-mentioned possibilities, such as Solicitor General Elena Kagan, federal appeals judges Sonia Sotomayor and Diane Wood, and law professors Pamela Karlan and Kathleen Sullivan.

Republicans hold only 40 Senate seats, so blocking an Obama nominee would be difficult for them. A majority of senators must approve a nominee. Republicans could try to mount a filibuster to stop a vote.

During last year's presidential campaign, Mr. Obama described the late Chief Justice Earl Warren -- who had never been a judge before President Dwight Eisenhower named him to the Supreme Court -- as representing the type of experience the bench needs. Mr. Warren had been a district attorney, state attorney general, governor and vice presidential candidate.

Under Mr. Warren, the court abolished segregation, imposed rules to deter police misconduct and curbed government's power to bar interracial marriages, inject religion into public schools and limit free speech.

Sen. Jeff Sessions

Sen. Sessions said that in some instances, "the Warren Court overreached, and I think sometimes [Chief Justice] Warren thought he was still a governor." He added that "sometimes a person untethered" to judicial traditions "can do damage."

Mr. Sessions said he was disinclined to suggest any candidates to Mr. Obama. He said he and the Senate Republican leader, Mitch McConnell of Kentucky, assured the president during Wednesday's meeting that once he makes his choice, "there wouldn't be an obstruction, the nominee would be treated fairly."

The senator said he expected to probe the nominee's legal views by asking him to explain prior judicial decisions, or speeches and articles on legal topics. "You don't want to ask them to commit to any particular ruling on a case," Sen. Sessions said, but he expects "proof that they've thought about an issue."

"I do not have to approve of the nominee's politics or morality or religion," he said. "We can even disagree on certain key holdings. But I will not support a nominee that I don't believe is committed to the faithful following of the law and the Constitution according to a fair construction of them."

Sen. Sessions said he wasn't sure that Mr. Obama shared his view of what fidelity to the Constitution means. "Sometimes he says things about a judge that seem mainstream. And sometimes he says things about judges that I'm taken aback by, such as his repeated statement that a judge should demonstrate 'empathy' from the bench."

Mr. Obama has said that while "95%" of cases can be decided through traditional legal tools of statutory construction or constitutional interpretation, in a small fraction of cases, text and precedent don't provide guidance, and the best judges rely on "empathy." Earlier this month, he described "understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."

Sen. Sessions said the president exaggerated the instances where legal text or legislative history left judges without sufficient guidance. "There are some open areas, but not as many as you think," he said. "Normally, if a judge makes a fair attempt to construct the meaning of a statute and [determine] the intent of the drafters, they can make a pretty good decision."