Supreme Court Kingmaker
Greg Craig—not Joe Biden, as earlier reports indicated—will run the search for David Souter's replacement, Richard Wolffe reveals. That move opens a window into Obama's hands-on leadership—and the VP's role.
Supreme Court selections are not just another presidential ritual: They are the most immediate way to build a legacy. For better or worse, they are forever known as Reagan, Bush, or Clinton justices, and they serve far longer than the presidents who pick them. But in Obama’s case, with the early task of replacing Justice David Souter, the selection represents something else: a window into how he leads and wields power.
Obama made clear that he really wants judges who view the law less as an abstract legal or ideological debate, and more as a social tool that impacts real people far outside the courtroom. By December, halfway through his transition, he was already naming names for a Supreme Court shortlist.
Soon after his election victory in November, Obama began preparing for his first Supreme Court selection with a meticulous planning exercise. As if he and his team didn’t have enough work with the monumental tasks of assembling a Cabinet, fighting two wars, and rescuing the economy, the transition period included detailed discussions about his Supreme Court shortlist. He managed a working group looking at judicial appointments, including those for the highest court in the land.
This was no cursory effort at checking boxes. He started by spelling out the kind of criteria he would apply to nominees, according to administration officials. Intellect and constitutional values may be vital. But Obama made clear that he really wants judges who view the law less as an abstract legal or ideological debate, and more as a social tool that impacts real people far outside the courtroom. By December, halfway through his transition, he was already naming names for a Supreme Court shortlist.
Once inside the White House, Obama’s team continued to refine their shortlist, researching the candidates’ backgrounds and records. They fully expected a Supreme Court vacancy to emerge rapidly. But they also were meeting the demands of a president who used to teach constitutional law at the University of Chicago, and who wants to leave a lasting imprint on the courts, just as Reagan did. The result: The Obama White House has already sent three judicial nominees to the Senate, well ahead of the pace set by Clinton (whose first judicial pick emerged in August) and slightly ahead of Bush (who sent his first nominee in May). Obama’s top-down approach gives context to who is running the Supreme Court selection. The shortlist work has been led by Greg Craig, White House counsel, not VicePresident Joe Biden, as some early reports suggested. With Craig running the Supreme Court selection process, Obama is leading the work out of the Oval Office.
Which is not to say that Joe Biden has no role in the Supreme Court nominee’s life. But there are two kinds of power inside the West Wing. One is decision power, which rests with the person who pulls the lever. The other is execution power, which rests with the people who turn those decisions into reality.
Biden’s expertise on the Supreme Court is extensive, but he does not hold decision power, nor does he appear to have much more than a counselor’s role in the critical decision. When Biden said that he would be no Dick Cheney as vice president, he clearly meant it.
Richard Wolffe is an award-winning journalist, political analyst for MSNBC television, and senior strategist at Public Strategies. He covered the entire length of Barack Obama's presidential campaign for Newsweek magazine, traveling with the candidate and his inner circle from his announcement through election day, 21 months later. His book, Renegade: The Making of a President , will be published by Crown in June 2009. Before Newsweek, he was a senior journalist at the Financial Times.