Conservative Legal Expert Warns That Obama’s Court Pick Does Matter, but Not Everyone on the Short List is ‘Equally Bad’

By Pete Winn | May 7, 2010 | 12:03 PM EDT

Judge Merrick Garland, possible Supreme Court nominee. (AP photo)

( - President Obama is expected to nominate a replacement soon for Justice John Paul Stevens, and a conservative legal expert warns that despite what many people believe, the Supreme Court is not dominated by conservatives, and that it does make a difference whom the president nominates to replace the retiring liberal justice.
“Well, the court is 5-4 on a number of issues, but people are under the impression that the court is 5-4 in a conservative way. In fact, on a whole range of issues from abortion to gay rights to the death penalty there is a five justice majority, which consists of Justice Kennedy joining with the four steadfast liberals,” Ed Whelan, president of the Ethics and Public Policy Center, told recently.
“So this is a court that, as currently composed -- and even after Justice Stevens’ replacement -- will still have a potential for a great deal of mischief.”
Whelan, who directs the Ethics and Public Policy Center program on the Constitution, the Courts and the Culture, is a former general counsel for the Senate Judiciary Committee. He said all four of Obama’s short-list candidates are liberal – but not all are equally bad, from a conservative viewpoint.
“One seems to have compiled a pretty solid record as a D.C. circuit judge,” Whelan said. “I’m speaking of Merrick Garland, who’s nowhere like the sort of jurist that would be on my short list, and there’s no question that he would be on the wrong side of a lot of issues, but he does seem to be at least a much more modest judge than some of the others who are on President Obama’s list.”
A Clinton appointee, Garland served from 1994 until his appointment as a federal Judge in the District of Columbia Circuit in Washington, as Principal Associate Deputy Attorney General, where his responsibilities included the supervision of the Oklahoma City bombing case and the prosecution of UNABOMer Ted Kaczynski.
Three other finalists reportedly on Obama’s shortlist are: federal Judges Diane Wood and Sidney Thomas and U.S Solicitor General Elena Kagan.
No matter whom the president names, Whelan said the Supreme Court desperately needs to be improved, he added.
“Look, what we need are nine justices who are faithful to the Constitution. There is no reason why any seat should stay bad simply because it has been bad,” he said. “Justice Stevens has occupied that seat now for some 35 years. Before him was Justice Douglas, who was even worse, for some 36 years. It’s about time we see a much better justice in that seat, though, frankly, there’s no reason to think that is going to happen with President Obama making the nomination.”
A magna cum laude graduate of Harvard Law School, Whelan served as a law clerk to Supreme Court Justice Antonin Scalia, and after 9/11, was principal deputy assistant attorney general for the Office of Legal Counsel in the U.S. Department of Justice.