Speculating about Obama’s pick to replace David Souter is heating up.  Lists are being generated and published by every imaginable source.  The special interest groups, influential Senators, and even a sitting Justice is weighing in lobbying for a woman nominee.  Allow me a little analysis here and it comes down to a few names.

We have to go by two criteria- the political reality and Obama’s own words (a real scarey thought).  Any pick is important and is rife with pitfalls.  Who can forget the political posturing over the Bork nomination which forever changed the way these shows are run?  And of course, there was the tale of the pubic hair in Coke can scandal that surrounded Clarence Thomas.  In case Obama believes he has political capital to exepnd here, one name comes to mind: David Hamilton.  He was Obama’s first judicial appointment and a decision made under the radar.  He was rolled out as a “centrist jurist.”  Two decisions by Hamilton while a District Judge in Indiana are indicative of his tendencies.  He struck down an Indiana law requiring medical counseling by a doctor or nurse at least 18 hours prior to an abortion.  This seems reasonable and not necessarily violative of the “undue burden” standard used to guage the legality of state abortion regulations.  In fact, the 7th Circuir Court of Appeals overturned Hamilton’s decision.  And in 2005, he struck down an Indiana statute regarding the recitation of a prayer prior to the opening of the legislative session.  Both these decisions hardly appear “centrist.”  Although they are merely two decisions of many by Hamilton, his confirmation is being held up in the Senate using many of the same techniques that were used against Bush appointees.  If heis having trouble getting Hamilton confirmed, then the stakes are certainly higher with a Supreme Court nominee.  And given his legislative agenda, his alleged political capital, buff body and suave speech will only go so far.  Secondly, should Obama appoint someone who could remotely be painted as a liberal, he runs the risk of losing moderate Republican support which could spill over into lack of support for his legislative agenda.  Obama and the Democrats benefit from an allegedly “splintered” Republican Party.  And while it is true that he really does not need Republican votes, given the enormity of his proposals and the costs, calling the GOP the “party of no” will eventually fall on deaf ears.  Is there really great popular support for cap-and-trade that would increase energy bills $2,000, or support for government-run health insurance?  There is only one known quantity with any of these proposals- the enormity of the cost.  Even within his party, he is facing some headwinds.

As for his “word,” it comes down to the promise of diversity and “understanding of how decisions affect real people.”  With diversity, it is more than just a de facto affirmative action program with Supreme Court justices.  Besides the ethnic make up of the court, which will be a factor, most of the justices are Ivy League educated, so getting away from that demographic is probable.  As for real world understanding, the higher you go up the appellate chain, the more esoteric the arguments and the further away you move from Obama’s “real people.”  Some have argued that he should not pick anyone from any Circuit Court of Appeals, where all current justices came from.  Obviously, that level of appeals court has the advantage of learning the nuances and intricacies of the law and legal reasoning.  Of course, you then have a record of opinions that could be used against you in a nomination hearing.

With these criteria in mind, it basically comes down to five realistic possibilities.  You have to summarily dismiss (1) all males, (2) all whites, (3) anyone over the age of 60, (4) Ivy League-educated candidates, and (5) anyone remotely affiliated with a liberal advocacy group (like the ACLU, NAACP, La Raza, etc.).  They are:

Kim McLane Wardlaw- age 45 from UCLA Law School and currently on the 9th Circuit Court of Appeals.  She is the long shot of the most-likely’s because she hails from the 9th Circuit, long considered to be an incubator of liberal legal scholarship.  But Wardlaw’s actual decisions have been all over the map ideologically.  While certain decisions would get a free pass (allowing a cross on public land), others would certainly get heightened scrutiny.

Martha Vasquez- age 46 from Notre Dame University Law School- District Judge in New Mexico.  She would be a stealth candidate who would make both woman and Hispanic groups happy.  Additionally, she is from a swing state.  The disadvantage is the perception of pandering and a possibly protracted hearing process to properly vet her out given her lack of opinions.  But, she is on the District Court and thus closer to the “people.”

Vicki Miles-LaGrange- age 44 from University of Texas Law School- District Judge for Western Oklahoma.  She would also be a stealthy candidate, but has the advantage of being from a decidedly red state.  She was born in Oklahoma City and is the local black girl who made good, a true success story and likely to get kids gloves treatment.  Additionally, she’s argued the law from both sides in private practice and in the Justice Department and as a prosecutor.

Anne Claire Williams- age 60 from Michigan Law School- currently on 7th Circuit Court of Appeals.  The negative is her age- the oldest of the probables, but she hails from Chicago and her husband is a neorologist at Northwestern.  Additionally, she taught at Chicago School of Law where Obama taught constitutional law.  There may be a certain level of familiarity and comfort with this pick.  Plus, she’s black.  Plus, in several interviews she has stated her political independence saying that she is neither Republican nor Democrat.

Leah Ward Sears- age 44 from Emory University Law School- Chief Justice of the Georgia Supreme Court.  She was the first black, female judge in Georgia and the first black, female elected to the Supreme Court.  She has announced her intention to step down this year and not seek another term.  Although Supreme Court voting is nonpartisan, the Republican Party and some Christian groups opposed her.  Despite that opposition, she garnered 62% of the vote.  Additionally, she’s from the south where Democrats don’t fare particularly well.

Whoever is chosen, expect  token opposition.  The choice will probably be approved and probably overwhelmingly by the full Senate, unless someone finds pubic hair in a Coke can along the way.  It will then be portrayed as Obama’s bipartisanship and moderation by him and his minions.  It will be his last “moderate” nomination most likely and certainly not a potential lightning rod like other names mentioned- Castillo, Santomayor, Koh, Kagan.  However, it is incumbent upon Republicans that despite the inevitable, the proverbial shot over the bow be taken this time given the greater importance of later nominations. They need to be respectful, but firm.  This is a good public relations chance for the Republican Party.  And whoever is chosen and confirmed, one can only hope that person becomes to Obama what Souter eventually became to Bush.