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Will Obama Use His Supreme Court Pick to Solidify Executive Power?

That’s the shrewd question that Charlie Savage raises in his “Washington Memo” Monday in The New York Times. Looking beyond the usual liberal-conservative splits on social issues like abortion, gun control and gay rights, Savage considers how President Obama’s choice of Supreme Court justice — likely to be named any day now – might influence the president’s claims to broad executive authority. And the choice of who will replace Justice David Souter “could be terribly consequential, ” as New York University Law Professor David Golove puts it, because so many of the court’s rulings on executive power have been by a margin of five to four.

Second Circuit Court of Appeals Judge Sonia Sotomayor seems like the kind of judge Obama says he’s looking for, with “intellectual firepower but also a little bit of a common touch and has a practical sense of how the world works.” But Sotomayor hasn’t had much opportunity to rule on issues of executive power, so her views on the subject may be hard to predict. Judge Diane Wood, on the other hand, has not endorsed sweeping presidential powers in the area of national security, saying in a 2008 lecture that “the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business.”

Would Obama risk appointing a judge who’s so openly doubted the powers he now claims as his own?

Former Harvard Law School dean Elena Kagan, now the Solicitor General, has, by contrast, approved broad claims to executive power when they were made by President Clinton concerning domestic matters. And in her confirmation hearing, she explicitly endorsed the president’s authority to indefinitely detain someone suspected of actively supporting al Qaeda or the Taliban. To be sure, as I’ve noted before, she seemed largely to agree with the Supreme Court’s ruling in Hamdi v. Rumsfeld, which isn’t exactly surprising for a lawyer nominated to be the administration’s chief advocate before the Supreme Court. But Savage points out that she also said that “there are occasional times where presidential power still exists, even if Congress says otherwise” — aligning herself in no uncertain terms on the side of a powerful executive.

Looking at the next Supreme Court pick through the lens of executive power casts this critical race in a whole new light. Judging from the record, as Savage reviews it, I’d say the Solicitor General might now be pulling ahead.

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