President Barack Obama made two successful appointments to the Supreme Court of the United States. The first was Judge Sonia Sotomayor to fill the vacancy created by the retirement of Justice David H. Souter. Sotomayor was confirmed by the United States Senate on August 6, 2009, by a vote of 68–31. The second appointment was that of Solicitor General Elena Kagan to replace the retired John Paul Stevens. Kagan was confirmed by the Senate on August 5, 2010, by a vote of 63–37.
During his final year in office, Obama had an opportunity to fill a third Supreme Court vacancy, following the February 13, 2016, death of Associate Justice Antonin Scalia. On March 16, 2016, he nominated Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit to the Court."President Obama Delivers a Statement on the Passing of Supreme Court Justice Scalia", Rancho Mirage, CA, Feb. 13, 2016, available at However, Republican leaders in the Senate announced that they planned to withhold voting on any potential nominee until a new president was elected. Senate Democrats responded that there was sufficient time to vote on a nominee before the election. Consequently, no action was taken on the nomination, which expired in January 2017.
During most of Obama's presidency, there had been speculation about the potential retirement of Justice Ruth Bader Ginsburg,At Supreme Court, no one rushes into retirement , USA Today (July 13, 2008). who turned 80 in 2013 and was previously diagnosed with colon cancer and pancreatic cancer.Adam Liptak, Ginsburg Has Surgery for Pancreatic Cancer , The New York Times (February 5, 2009).Carrie Johnson, Ginsburg illness puts focus on Obama's choices The Washington Post (February 6, 2009). Justice Ginsburg died on September 18, 2020, during Donald Trump's first presidency, and was replaced by Amy Coney Barrett on October 27, 2020.
Court composition under Obama Name Appointed Appointed by Law school (JD or LLB) (Chief Justice) 2005 Harvard University 1986 Harvard University 1988 Harvard University 1991 Yale University 1993 Columbia University 1994 Harvard University 2006 Yale University 2009 Yale University 2010 Harvard University
Politics
Obama opposition to Bush nominees During the 109th Congress, then-Senator Obama voted against both of President George W. Bush's nominees to the Supreme Court. In a speech announcing his opposition to John Roberts, Obama stated:
In explaining his opposition to Samuel Alito, Obama further evaluated the qualities he found important in a Supreme Court justice:
Obama comments during 2008 presidential campaign In a speech on July 17, 2007, before the Planned Parenthood Action Fund, he elaborated even more:
In November 2007, Obama was asked about the kind of justices he would appoint to the Supreme Court. He responded:
Later in March 2008, while on the campaign trail in Ohio, Obama again addressed the traits he would look for in a Supreme Court justice, suggesting he might leaven legal scholarship with practical political experience. He held up Earl Warren, a former governor of California who later became Chief Justice, as an example. Mr. Warren, he said, had had the wisdom to recognize that segregation was wrong less because of precise sociological effects and more so because it was immoral and stigmatized blacks:
Later, however, Obama seemed to step away from the example of Warren. In an interview with the editorial board of the Detroit Free Press on October 2, 2008, Obama said:
Instead, Obama mentioned then current justices David Souter and Stephen Breyer as examples of people he would like to nominate to the Supreme Court in the future:
In the third and final presidential debate with Republican nominee John McCain on October 15, 2008, Obama also implied that he would look for a Supreme Court nominee with previous judicial experience:
Court demographics
Demographic considerations have played into the appointment of Supreme Court justices since the institution was established. Starting in the 20th century, these concerns shifted from geographic representation to issues of gender and ethnicity.Jeffrey Toobin, Diverse Opinions , The New Yorker, (June 8, 2009).
Prior to the 2008 presidential election, many court watchers suggested that the next president would be under significant pressure to appoint another woman or ethnic minority to the court.Jeffrey Rosen, Short Bench: Why the Dems lack Supreme Court nominees , The New Republic (March 12, 2008). The calls for naming more women were particularly widespread given the recent retirement of Sandra Day O'Connor and the rapidly changing demographics of the legal community, with women now accounting for about a fifth of all law partners and law school deans, a quarter of the federal bench, and nearly half of all law school graduates.Charlie Savage, Wider World of Choices to Fill Souter’s Vacancy , The New York Times (May 1, 2009). Shortly before the election, for example, NPR reported, "Most observers of the Supreme Court agree about one thing: The next nominee is likely to be a woman".Nina Totenberg, Law School Past Shapes Obama's View On Justices , National Public Radio (November 2, 2008). Furthermore, after Obama's presidential election victory, Hispanic legal interests groups such as the Hispanic National Bar Association began urging Obama to nominate a Hispanic justice.Tony Mauro, Pressure Is on Obama to Name First Hispanic Supreme Court Justice , Legal Times (December 1, 2008).
Given the relative youth of the most recent Republican appointments, it was also noted that Democrats had "a strong incentive to pick younger justices this time around". Age proved to be an important consideration for Obama, who was "looking for a justice who will be an intellectual force on the court for many years to come".Bill Mears, Sources: High court selection process down to finalists , CNN (May 13, 2009). As a result, Obama did not seriously consider candidates such as José A. Cabranes, Amalya Kearse, Diana Gribbon Motz, David Tatel, and Laurence Tribe, all of whom he respected but were older than 65 when Obama was looking to replace David Souter.
With the retirement of Justice Stevens, some commentators directed focus on the religious make-up of the court. Upon Justice Stevens' retirement, the Court lacked any Protestant members, marking the first time in its history that it will be exclusively composed of Jewish and Catholic Justices.Nina Totenberg, "Supreme Court May Soon Lack Protestant Justices," NPR, Heard on Morning Edition, April 7, 2010, found at NPR website and transcript found at NPR website . Cited by Sarah Pulliam Bailey, "The Post-Protestant Supreme Court: Christians weigh in on whether it matters that the high court will likely lack Protestant representation," Christianity Today, April 10, 2010, found at Christianity Today website . Also cited by "Does the U.S. Supreme Court need another Protestant?" USA Today, April 9, 2010, found at USA Today website . All accessed April 10, 2010.
Sonia Sotomayor nomination
On May 26, 2009, Obama announced Second Circuit appeals court judge Sonia Sotomayor as his choice to replace retiring Associate Justice David H. Souter. Sotomayor's nomination was submitted to the United States Senate on June 1, 2009, when the 111th Congress reconvened after its Memorial Day recess. Sotomayor was confirmed by the Senate on August 6, 2009, by a vote of 68–31,Charlie Savage, Sotomayor Confirmed by Senate, 68-31 , The New York Times (August 6, 2009). and was sworn in as an Associate Justice on August 8, 2009.Greg Storh, Sonia Sotomayor Sworn In as Supreme Court Justice, Bloomberg (August 8, 2009).
David Souter retirement Long before the election of President Obama, Associate Justice David H. Souter had expressed a desire to leave Washington, D.C., and return to his native New Hampshire.Robert Barnes, Souter Reportedly Planning to Retire From High Court , The Washington Post (May 1, 2009). The election of a Democratic president in 2008 made Souter more inclined to retire, but he did not want to create a situation in which there would be multiple vacancies at once. Souter apparently became satisfied that no other justices planned to retire at the end of the Supreme Court's term in June 2009. As a result, in mid-April 2009 he privately notified the White House of his intent to retire from the Supreme Court at the conclusion of its business for that term. Souter submitted a resignation letter to Obama on May 1, who later that day made an unscheduled appearance during the daily White House press briefing to publicly announce Souter's retirement.
Short list Obama began the process of identifying potential Supreme Court nominees shortly after his election in 2008, before a Supreme Court vacancy was actually known. White House Counsel Greg Craig helped assemble an early list of possible names. Once the White House had learned of Souter's plans to retire, two members of the Vice President's staff, Chief of Staff Ron Klain and Counsel Cynthia Hogan, ran the daily operations of the selection process.
Within a week of Souter's announcement the White House had formalized its short list of candidates to replace Souter, with Judge Sonia Sotomayor of the Second Circuit, Judge Diane Pamela Wood of the Seventh Circuit, and Solicitor General Elena Kagan reportedly leading contenders for the nomination.Jan Crawford Greenburg, White House Formalizes Supreme Court Short List , ABC News (May 7, 2009). Homeland Security Secretary Janet Napolitano, California Supreme Court Justice Carlos Moreno, and Michigan Governor Jennifer Granholm were also reportedly on the short list of candidates under serious consideration by the White House.Ben Feller, White House: No interviews of court candidates yet, Associated Press (May 15, 2009). Chief Justice Leah Ward Sears of the Georgia Supreme Court, Judge Merrick B. Garland of the United States Court of Appeals for the District of Columbia Circuit, and Judge Ruben Castillo of the Federal District Court for the Northern District in Illinois were also on the final list of nine candidates. Joanne A. Epps, dean at Temple University Beasley School of Law was a contender according to NPR.
Interviews Obama had not interviewed any of the candidates before May 18,Associated Press, Court candidate Granholm visits White House (May 19, 2009). but that week saw a flurry of activity and speculation surrounding possible interviews of candidates. Jennifer Granholm attended a CAFE standards meeting at the White House on May 19 and spoke with Obama, but officials would not comment on whether the two discussed a potential court appointment. On May 20, Diane Wood and Elena Kagan attended a conference on judicial independence at Georgetown University hosted by retired Associate Justice Sandra Day O'Connor.Edwin Chen and Greg Stohr, Obama Said to Have Met With High Court Candidate Wood , Bloomberg (May 20, 2009). Ultimately, Obama winnowed his list to four individuals, all of them women: Sotomayor, Wood, Kagan, and Napolitano.Peter Baker, Favorites of Left Don’t Make Obama’s Court List , The New York Times (May 25, 2009). Obama conducted hour-long one-on-one interviews with the four finalists, meeting with Wood and Kagan on May 19, and Sotomayor and Napolitano on May 21.Peter Baker and Jeff Zeleny, Obama Hails Judge as ‘Inspiring’ , The New York Times (May 26, 2009). Vice President Joe Biden also interviewed the four finalists.
Obama telephoned Judge Sotomayor at 9 pm EST on May 25 to alert her that she was his choice. Later that night, he called the other three finalists and informed them of his decision. Obama announced the nomination the next morning in the East Room of the White House in a press conference alongside Sotomayor and Joe Biden.
Elena Kagan nomination