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Associated Press

Posted on: Sunday, May 24, 2009

Factors under consideration

 •  Obama details justice criteria
Hawaii news photo - The Honolulu Advertiser
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On the verge of choosing his first Supreme Court nominee, President Obama has provided a profile of the person he is likely to pick. Here is what he is weighing:

Gender. Five of the six people known to be under consideration by Obama are women. The nine-member court now has only one woman, Ruth Bader Ginsburg, who herself has said the court needs more women. Gender is a key factor, but Obama has publicly spoken of picking the best nominee, period.

Intellectual prowess and personality. Some justices rule for years with quiet precision; others help shape the debate. On a court with a 5-4 split, Obama may decide to go with someone deemed to have the oratorical ability to match up with conservatives such Chief Justice John Roberts and Justice Antonin Scalia.

"Having a giant on the bench — somebody who has the personality to help drive the decisions — I think that's valuable," said Bill Marshall, a law professor at the University of North Carolina at Chapel Hill who worked in President Clinton's White House. "I think (Obama) gets that from being a constitutional law professor. He knows about the importance of those interpersonal skills."

Philosophy. Obama favors abortion rights, and although he has spoken against applying a so-called litmus test, he says he will not nominate someone who does not believe in a right to privacy. Obama is also inclined to pick someone who shares his view that the Constitution is to be interpreted in light of today's realities, not those of the founders.

Age. Obama, who is 47, is likely to favor someone closer to his age who could serve on the court for decades. Seven of the nine justices are at least 60 years old, and most are at least 70. But Roberts is only 54, and the other justice named by President George W. Bush, Samuel Alito, is 59.

Diversity. Obama is poised to please or dismay leaders of the Hispanic community with his choice. The court has never had a Hispanic justice. At least two of Obama's finalists are Hispanic.

"The power and legitimacy of our legal system depends on the trust that the population has in that system," said Ramona Romero, president of the Hispanic National Bar Association. "It is important that Hispanics see themselves reflected in all of our institutions."

Experience. The current court is composed entirely of former federal appeals court judges. Such a route provides a base of decisions which could help inform the president and the Senate — or make for trouble in a confirmation. Obama is considering federal appeals judges Sonia Sotomayor and Diane Wood, who have gone that traditional path. But he has also spoken favorably of finding someone outside the court system, which could bode well in particular for Michigan Gov. Jennifer Granholm and Homeland Security Secretary Janet Napolitano.

Compelling narrative. Obama may choose a nominee who doesn't just understand hard times but has lived them, which could point toward Sotomayor, the daughter of Puerto Rico immigrants, who grew up in a Bronx housing project and dealt with family struggles. Or Obama could choose to make a bold splash by choosing someone like Granholm, who leads a state coping with a battered economy and would come to the job with a prominent political personality.

Confirmability and cooperation. Barring a huge problem, Obama's choice is expected to be confirmed in the Senate, where Democrats hold 59 votes. But part of the political calculation is how smoothly the nominee will get through. At a time when his agenda is packed with big domestic items and he needs help from both parties, Obama may not want to spend capital needlessly on a more contentious choice.