Misinformation functions in a similar fashion, gaining traction as it’s repeated by increasingly high-profile individuals who venture ever further from the source material. In this manner, distortion about the facts of sexual assault has affected the training of judges, prosecutors, and other law enforcement officials. It is how misleading assertions become embedded in criminal and military law.

This is a story of how a theory without merit, derived from highly questionable statistics, imperils the most basic tenets of due process and risks turning every unproved accusation into a verdict of guilt.

The example discussed here began with a small study by an associate professor at a commuter college in Massachusetts. The 12-page paper describing the study barely created a stir when it was published in 2002. Within a few years, however, the paper’s principal author, David Lisak, a University of Massachusetts-Boston psychologist, began making dramatic statements that extrapolated far beyond the study’s conclusions. He created, virtually out of whole cloth, a theory that “undetected” serial rapists are responsible for 90 percent of assaults on college campuses, that they premeditate and plan their attacks, and that they are likely to have committed multiple acts of violence.

When speaking on campuses, to the military, and to law enforcement, Lisak started showing a highly disturbing video that he claimed was based on the transcript of an actual interview with a campus rapist to whom Lisak gave the name “Frank.” The authenticity of the video has been seriously questioned, raising grave doubts about Lisak’s contention that it illustrates the typical campus perpetrator—in his view, an unrepentant sociopath who cannot be reached or educated.

A news search for mentions of Lisak finds only a single one prior to 2009, in which he revealingly opined in an urban policy magazine about the Duke lacrosse rape hoax. He was interviewed again by CBS News in November 2009 about non-stranger rapes. He increasingly became the draw at conferences on sexual assault and his calendar filled with campus presentations. The media began to fawn over him, whether due to the drama of the notion of campuses being stalked by serial rapists or to the failure of campus administrators, blinded by the appeal of an identifiable villain, to point out the disconnect between Lisak’s portrait and their own observations. (A sociopath responsible for the majority of assaults can be removed from campus. The reality of college drinking and the still-developingadolescent brain, and the relationship of both to behavior fueled by poor judgment and peer pressure, provide no such easy fix.) By the end of 2010, Lisak’s status was on the rise. Within a few years, his was arguably the most high-profile name on the topic of sexual assault.

Lisak’s serial-rapist theory was reflected in the 2011 letter in which the Department of Education ordered universities to adopt specified, guilt-presuming disciplinary procedures for alleged sexual assaults and, in the process, gave credence to the probability of repeat offenders. Lisak’s theory also found its way into a January 2017 report by the White House Task Force to Protect Students From Sexual Assault, which simultaneously criticized a more recent, nationally representative study that had been subject to far more rigorous statistical analysis. Lisak was quoted so often as to make him a central figure in the pseudo-documentary “The Hunting Ground.” As his celebrity grew, the gap between documented facts and his status as an expert became almost inconsequential.

Criticism did eventually catch up to David Lisak. His serial predator model of campus rape has been compellingly debunked by scholarly researchers and well-regarded publications, including investigative articles and a book. His claims regarding the psychology of campus perpetrators were revealed to be based on nonexistent interviews. A key component of his presentations, an “unedited transcript” of an interview with a college rapist presented as timely and typical was revealed to be not only highly edited but based on an interview from three decades ago with a subject who was clearly an atypical outlier — as documented by Lisak’s own publications.

A 2008 paper, in which he linked “undetected serial rapists” with a propensity to commit serial and “crossover” acts of violence such as interpersonal attacks unrelated to sex, was shown to have provided no basis for such a generalization. His assertions, allegedly supported by a study he co-authored in 2010, that false accusations of sexual assault are exceedingly rare, have been shown to violate basic math by counting as true cases that didn’t qualify as sexual assault, had insufficient evidence to make a determination, or were referred for prosecution but about which the outcome was unknown.

As for Lisak’s vague statements about having interviewed “hundreds” of serial rapists (occasionally styled as “thousands” when others talk about him), in truth no evidence exists that Lisak has interviewed any “undetected rapists,” serial or otherwise, since his dissertation research 30 years ago.

His claimed years of research turned out to be a handful of actual research publications, reviews full of editorializing about others’ research, rehashing of the dissertation he completed in 1989, and a website that deceptively merges that dissertation’s 1980s-era research on 12 college students with unrelated data from the 2002 paper on repeat offenders.

Yet all of these devastating exposés have barely dented Lisak’s popularity. In spite of his own warning in that 2002 paper that the “non-random nature of the sampling procedures” precludes interpreting the data “as estimates of the prevalence of sexual and other acts of violence,” he has built a career doing exactly that. His original research—the ostensible basis of his expertise—fits on a single page of his curriculum vitae. In spite of this limited output, he continues to be a featured speaker and forensic witness based in large part on the very distortions that have been so convincingly exposed.

Were the damage wrought by David Lisak’s popularity confined to his college-circuit road show, there might be some hope that his toxic influence would be worn down by the critical thinking ostensibly prized by the academy.

Instead, that has not happened. The list of invited presentations, workshops, and media appearances in which he has hawked his unsubstantiated theories runs an additional 40 pages on his curriculum vitae. Among the most worrisome aspects of Lisak’s presentations and workshops is how they appear to be gaining influence among professionals close to the investigation and adjudication of sexual assault. His debunked serial predator theory and wildly extrapolated statistics on the false-accusation rate form the core of the training materials he has developed—and in some cases sold to law enforcement, prosecutors, judges, and the military.

Whenever Lisak presents his serial predator theory—invariably accompanied by his claims about the low rate of false accusations of rape–his toxic influence spreads. A small sampling shows its range:

• S. Air Force. Special training for the Office of Special Investigations: The Behavior and Characteristics of Non-stranger Rapists: Implications for Investigation and Prosecution.
  Joint U.S. Navy and Marine Corps Mobile Training Team conference, Naval Air Station Jacksonville. The Undetected Rapist.
  Delaware Judicial Education Retreat. Sex Offenders: Myths and Realities.
  S. Marine Corps. Special training for JAG officers: How Predators Pick Their Prey.
  California Administrative Office of the Courts. Handling Sexual Assault Cases: Sex Offender Characteristics and Evaluating Evaluations.
  Wisconsin Office of Justice Assistance Statewide Sexual Assault Response Team Conference. False Reports of Rape: What Do the Numbers Tell Us?
  Special Law Enforcement Training, State University of New York. The Behavior and Characteristics of Non-stranger Rapists.
  Prosecuting Attorneys Association of Michigan Sexual Assault Summit.Rapists: Myths and Realities.

Again, were the damage limited to misinforming attendees, it might not be so large as to warrant concern about the damage wrought by Lisak’s influence. Unfortunately, that’s not the case, either. For example:

A project funded by the U.S. Department of Justice compiled a list of 25 “facts” that judges who attended seminars offered by the National Judicial Education Program—a company for which Lisak has served as a faculty member and that continues to sell materials he created—said they wished they’d known before presiding over sexual assault cases involving adult victims. Although the fact list includes some reasonable and factual assertions, it also includes Lisak’s unfounded claims about serial predators and false reports. As part of its curriculum, NJEP advises judges to use voir dire to gauge prospective jurors’ familiarity with these “facts.”
Especially frightening was one judge’s conclusion that “when evaluating sex offender risk, actuarial assessments are more accurate than clinical assessments.” That is, a psychologist’s judgment of the danger the defendant represents should take a back seat to the statistical likelihood, based on Lisak’s “research,” that the defendant has committed other acts of “undetected” violence.
Lisak’s misinformation has been passed on to law students, practicing attorneys, and judges through a number of influential sources, including Cornell’s Law School, the Judicial Education Center, the Florida Court System, the National Center for State Courts, and the American Bar Association. In every case, the benefit is to the prosecution.
Even the National Academy of Sciences has used Lisak’s unsupported serial rapist theory to weigh in on “police mishandling” of rape accusations that “has allowed serial rapists like those in Lisak and Miller’s research to perpetrate again and again without detection.”
A 2016 amicus brief filed with the Supreme Court of Ohio made a similar charge but upped the ante by invoking Lisak’s (equally unsupported) claim that these serial offenders had a propensity for other violence as well.
Most troubling of all, Lisak’s material is being codified in law enforcement policies, legal precedents, and judicial guidelines at the local, state, and federal levels.

The Sexual Offense Bench Guide for judges in the state of Washington, for example, draws liberally from Lisak’s 2008 publication “Understanding the Predatory Nature of Sexual Violence.” His claims have been similarly incorporated into New Mexico’s Sexual Assault Bench Book, the Tribal Court Judges Bench Book on sexual assault, the Missoula County Attorney’s Office Policy and Procedure Manual, the Pennsylvania Crimes of Sexual Violence Benchbook, New York State’s Judicial Symposium, Wisconsin’s Prosecutor’s Sexual Assault Reference Book, and the Judge Advocate General Corps Criminal Law Desk Book.

The relationship between prosecutors, judges and the juries who will ultimately arrive at verdicts in criminal trials is further tainted by recommendations that prosecutors and judges incorporate into the jury selection process: namely, Lisak’s claim that false accusations are rare and his unsupported theory about serial offenses.

JAG guidelines for prosecutors, for example, advise that “myths” about the frequency of false reports be challenged “directly, in voir dire and in argument.” Prospective jurors whose information does not align with the (inaccurate) information provided in guidelines influenced by Lisak could then be dismissed and/or a seated jury could be told of the supposedly “true” facts. Recommendations from the NYU School of Law related to prosecuting sexual assault invoke Lisak to justify investing resources to pursue less credible cases because each represents “an opportunity to catch a serial rapist.” Prosecutors can, the recommendations continue, “uncover juror rape myth acceptance” via voir dire and “educate the jury pool about sexual assault.”

Once so codified in judicial and law enforcement guidelines, this toxic mixture of misinformation is extremely difficult to dislodge. Skewed jury pools, erroneous decisions at trial, and the weight of distortion have real consequences. A judge in Montana, for example, denied a request to have a case dismissed on the grounds of a Missoula police department requiring  officers to presume the guilt of the accused when investigating sexual assault. The judge stated that she based her ruling on Lisak’s (baseless, and thus misleading) testimony about the low rate of false reports. When such decisions are made, when presumptions of guilt are part of the training of judges and prosecutors, or reflected in jury instructions, innocent defendants are put in harm’s way.

Even those ostensibly in the business of impartial news coverage have been tainted by their own guidelines, as when the media have been fed the same misinformation, masquerading as insight. Their contribution to the problem is further amplified when they are further advised not to use the phrase “rape allegation” because “allegation is not a neutral term and strongly implies doubt,” and they fail to see that the alternative suggested—“reported rape”—implies an act that has, indeed, happened, distinguished only by the fact that it is on record.

Where does that leave those for whom accuracy, integrity, and truth matter?

The unfortunate reality is that the greatest potential harm of the current environment accrues to the accused. Therefore, defense attorneys already burdened with a state of affairs in which “accused” defaults to “perpetrator” and “accuser” defaults to “victim” need to equip themselves to take on not only expert witnesses citing bogus “research” but also the underlying studies.

This is not an easy assignment, but the use of good lawyering to dismantle bad “research” can be powerful, and good courtroom theater as well. When faced with a Lisakian claim that “only 6 percent of rape allegations are false,” the defense attorney can ask what percent, then, are true? David Lisak himself would have great trouble answering that question without being exposed as a statistical manipulator, because his writings have never even addressed it. Rather, he has used misleading language to imply that almost all rape accusations have been proven true. Indeed, a good defense lawyer could fairly ask: “Isn’t it a fact, Mr. Lisak, that the number of rape accusations that have been proven false may well be larger than the number that have been proven true?”

When the assertion about Lisak’s serial sociopaths is repeated, the defense attorney can point to the fact that Lisak’s study never established a single serial crime, nor that any of the rapists were undetected, and to Lisak’s own statement that his findings cannot be generalized beyond the limited scope of a single study. When Lisak’s “interviews” are invoked, the defense attorney can ask: How could anyone interview survey participants whom he never met and whose identities he never learned? Weren’t the only interviews Lisak actually did those with the 12 subjects of his three-decades-old dissertation research? And were not the highly impulsive subjects described in his dissertation wholly unlike the portrait he later painted of sociopaths with excellent impulse control who premediate and plan their crimes?

Lisak’s claims are wrong and the experts who tout them are vulnerable when asked direct questions. The discrediting of Lisak must become part of the court record, in case after case, before the far more difficult task of correcting the effects of his bogus claims on criminal justice policies can be accomplished.

The focus here has been on one particular—and particularly problematic—conveyer of misinformation. David Lisak’s high profile and willingness to depart from even his own published papers in service of an agenda makes him the embodiment of the attack on due process. But Lisak is not alone. He has recently been joined by other “experts” straying even further afield from verifiable data and often in direct contradiction of known science.

The difficulty of fighting the toxic distribution of misrepresentation and statistical sleight-of-hand is partially a function of high-profile purveyors and enablers. The codification of myths in law enforcement procedures; in the training of prosecutors and judges; and in policy at the town, county, state, and federal levels all but guarantees insidious and continuous regeneration. The roadmap such myths provide is wrong but concrete, offering up sociopathic villains in place of a continuum of offenders, permission to presume guilt in the absence of evidence, and a philosophy that accusers not only don’t lie but are never mistaken. Few combinations are more immune to objective inquiry than fear of monsters and the comfort of easy answers for taking them down.

But objective inquiry is called for and those who put obstacles in its way must be confronted. Neither law enforcement nor the courtroom should be a conducive environment for misinformation. It should not be intentionally introduced or passively tolerated. For now, a disproportionate burden will fall to defense attorneys. The battle against misinformation starts one case at a time.

Linda LeFauve is a college administrator and a contributor to Reason.
Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

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Indeed, American politics has not seen a moment like this one since 1987. That was when the retirement of moderate Justice Lewis Powell, who was the pivotal vote on many big issues, left the court with four strong conservatives and four strong liberals. (The latter included Sandra Day O’Connor, whose votes through 1987 had been quite conservative.)

It was clear then that if the Democratic-majority Senate confirmed President Ronald Reagan’s first nominee, the very conservative Judge Robert Bork — as at first seemed likely — the court would swing hard to the right.

Bork himself later told me and others that he would have been the fifth vote to overrule Roe v. Wade and a lot more liberal precedents. But Democratic senators and liberal interest groups went all out to stop him and succeeded by a 58-42 vot

Now the court has four strong liberals, three strong conservatives and one less consistent conservative, Justice Anthony Kennedy. He sometimes joins the liberal bloc on issues including abortion, gay rights and the death penalty. Kennedy also happens to be the Reagan nominee whom the Senate confirmed after Bork’s defeat.

If and when a liberal replaces Scalia, therefore, the court will likely overrule or cut back sharply major conservative precedents including those limiting abortion rights, those restricting race-based affirmative action (in theory if not so much in practice) and those giving strong First Amendment protection to unlimited spending in election campaigns.

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I hasten to add that the consensus that Garland would be the least controversial, most easily confirmed nominee is the least of my reasons for praising him.

Nor is my personal relationship with Garland a substantial factor, although full disclosure is in order: We became friendly in law school, working together on the law review in the mid-1970s. We had dinner at each other’s homes years ago and, more recently, have met for lunch once or twice a year. He invited my wife and me, among many others, to his chambers to watch President Obama’s inauguration. Garland has been guarded about his views, and I know nothing about them beyond the public record. But I can testify — as can many others — that he is about as fair-minded, judicious, and straight as a straight-arrow can be.

To be sure, ranking Garland and the three other shortlisters — all people of outstanding integrity and intellect — is a close call.

Solicitor General Elena Kagan, the early betting favorite, would bring youth (she is 49; Garland is 57), charm, and substantial conservative as well as liberal support. The former Harvard Law School dean is unencumbered by much of a paper trail — her views on almost all of the big issues are unknown — or by as much real-world experience as the others.

If the president wants an unalloyed, intellectually meticulous liberal, 59-year-old federal Appeals Court Judge Diane Wood of Chicago would fill the bill. (So would Garland’s admirable D.C. Circuit colleague David Tatel, were he not considered too old, at 68, to serve for more than a decade or two.)

If Obama wants to add broad experience in politics and government, plus geographical diversity, to a Court now made up of nine former federal Appeals Court judges mostly from Harvard and Yale law schools, 52-year-old Homeland Security Secretary Janet Napolitano — a former Arizona governor — would be best.

But the president could do no better than Garland if he wants a moderate liberal universally seen as a paragon of fairness, open-mindedness, and collegiality, with broad experience as a high-level Justice Department troubleshooter, as a prosecutor who showed extraordinary empathy for victims, and as a corporate litigator.

"He is also the most effective person I’ve ever known at persuading people to his point of view."

Some liberals worry that accolades from such conservatives as Sen. Orrin Hatch, R-Utah (not to mention from me and other centrists) must mean that Garland leans to the right.

But Garland is no conservative. His overall record suggests that when the Supreme Court splits along liberal-conservative lines, he would usually — if not always — vote with Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.

Garland has sometimes disappointed liberals with rulings that he said he regretted as unjust but compelled by law, notably a logically unassailable 2000 decision that nothing in the Constitution empowered his court to give D.C. residents voting representation in Congress.

But he has also taken on conservatives when he felt that their position was weak on the law. Last September, for example, Garland dissented point-by-point from a ruling by conservative colleagues Laurence Silberman and Brett Kavanaugh that Supreme Court precedent required dismissing a lawsuit filed by Iraqis against U.S. military contractors who had worked at Abu Ghraib prison as interrogators and interpreters. The former prisoners alleged that — as Garland put it — the contractors had "beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused" them.

It’s true that ex-prosecutor Garland’s record — unlike that of Stevens — is relatively pro-prosecution in terrorism cases and criminal proceedings. But Kagan’s history as solicitor general is, if anything, more pro-prosecution. So was Ginsburg’s record during her 13 years on the D.C. Circuit.

"He was born to be a judge," says Jamie Gorelick, who met Garland at Harvard College and made him her top adviser from 1994 to ’97, when she was President Clinton’s deputy attorney general. "He listens. He’s open to all points of view. He’s eminently fair. He is also the most effective person I’ve ever known at persuading people to his point of view."

Not among the most effective. The most effective.

Another superlative, from a D.C. Circuit colleague who declines to speak for attribution: "He’s one of the most skilled judges I’ve ever sat with, and probably the most conscientious."

Garland is also known for beautifully crafted judicial opinions that are models of logic and clarity. Indeed, during his September 2005 confirmation hearing to become chief justice, then-Appellate Judge John Roberts went out of his way to say that "any time Judge Garland disagrees, you know you’re in a difficult area."

Here is a sampling of the uniformly glowing reviews by anonymous lawyers collected by Aspen Publishers’ carefully researched Almanac of the Federal Judiciary: "He is a brilliant man … painstakingly thorough … a judge’s judge … I have never seen him annoyed or petulant … a very good sense of humor … very pleasant … polite … absolutely beloved by those who have worked for him … a man of humility and superb values … not predictable based on ideology at all … very fair … an open mind … intellectual depth … an unusually empathetic man … very much aware of the impact of his decisions on real people … extremely evenhanded."

(Lawyers’ reviews of Judge Wood in the almanac are almost as enthusiastic.)

Some commentators see Garland as too much of the same for a Court with nine former federal Appellate judges; with no member who has ever run for office or served on a state court; and with more than enough Harvard-Yale representation.

But Garland had an unusually rich experience between Harvard and the D.C. Circuit. After clerking in New York for Judge Henry Friendly — perhaps the greatest judge of the 20th century — and then for the very liberal Justice William Brennan, Garland was a special assistant to Attorney General Benjamin Civiletti. After that, he was a corporate litigator at Arnold & Porter, a big Washington law firm, for almost a decade. In 1989, he left his lucrative partnership to become a federal prosecutor in D.C., trying lots of cases. All the while, Gorelick says, Garland’s life has revolved around work, his wife, Lynn, and their two daughters.

As Gorelick’s principal associate deputy attorney general, Garland had a hand in most big Justice Department issues and supervised the Unabomber and Oklahoma City bombing prosecutions. He specifically asked to be sent to Oklahoma City after the 1995 bombing and ran the case for Justice until he had put a trial team in place to prosecute Timothy McVeigh.

"He was unbelievably motivated by the victims," Gorelick recalls. "When the bomb went off in Oklahoma City and they started pulling little children out of that wreckage, he was stricken. He was also moved that people were killed just because they worked for the government. He put his soul into that and spent a lot of time with the families."

President Clinton got Garland onto the D.C. Circuit, after a long Republican stall, in 1997. That court’s docket is heavy with appeals from federal agency rulings, and Garland has had no cases involving abortion, religion, the death penalty, gay rights, or most other ideologically polarizing Supreme Court issues.

Colleagues give him much of the credit for the remarkable paucity of angry splits on a court whose membership includes a leading liberal (Tatel) and strong-minded conservatives such as Chief Judge David Sentelle. Garland is said to be especially effective at finding narrow ways to resolve cases without tackling larger, more divisive controversies.

Among several opinions pleasing to liberals that Garland persuaded conservative colleagues to support was Parhat v. Gates in 2008. Joined by Sentelle and George W. Bush appointee Thomas Griffith, Garland rejected as utterly unsupported by evidence the Bush administration’s claim that Chinese Uighurs imprisoned at Guantanamo Bay were subject to indefinite detention as "enemy combatants."

To be sure, Garland’s consensus-building skills might not work as well on the Supreme Court. The stakes are much higher there, with a steady stream of big cases not clearly governed by precedent. And it’s an uphill battle for any newcomer to influence more-senior justices.

But Garland is as good a bet as anyone to soften the ideological edges of the deeply divided Court and bring a quality too often lacking there. It’s called wisdom.

This article appeared in the Saturday, April 24, 2010 edition of National Journal.

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Many Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee as an ultra-liberal eager to push the Court to the left, legislate from the bench, impose gay marriage by judicial decree, strip "under God" from the Pledge of Allegiance, invent welfare rights, require government-funded abortions, and free terrorists.

But, in fact, none — or at most one — of the four brainy and well-qualified public servants at the top of the shortlists that have made their way into the media from inside sources seems likely to move the Court left.

None of the four is clearly more liberal than Stevens, who is in turn a lot less liberal than, say, the late Justices William Brennan or Thurgood Marshall.

Stevens, who will still have one of the best minds on the Court when he turns 90 on April 20, has long insisted that he remains the old-fashioned judicial conservative and moderate Republican he was when President Ford appointed him in 1975. But the leftward drift of his opinions over the years has made him the senior member of the four-justice liberal bloc.

The four shortlisters are Solicitor General Elena Kagan; federal Appeals Court Judges Diane Wood of Chicago and Merrick Garland of the District of Columbia; and (though some count her out) Homeland Security Secretary Janet Napolitano. President Obama interviewed Kagan, Wood, and Napolitano last spring before choosing Sonia Sotomayor, an Appeals Court judge, to succeed Justice David Souter.

It would be hard for Senate Republicans to justify or sustain a filibuster against any of these four, based on what’s known about them. Indeed, Kagan, Garland, Napolitano, and arguably Wood have less problematic paper trails than Sotomayor, whom the Senate confirmed last summer on a 68-31 vote, with lots of complaining but no filibuster.

Democrats (including then-Sen. Obama) tried to filibuster Justice Samuel Alito in 2006, but the Senate voted 72-25 to break the filibuster and then 58-42 to confirm him. This even though Democrats then held 45 seats — four more than Republicans hold now — and even though Alito was clearly more conservative than Justice Sandra Day O’Connor, his predecessor.

If the president’s priority were to seize his last chance to get a crusading liberal onto the Court before the expected Democratic losses in November, he might choose State Department legal adviser Harold Koh or Stanford law professor Pam Karlan. Other possibilities include Sen. Amy Klobuchar of Minnesota, Michigan Gov. Jennifer Granholm, and Massachusetts Gov. Deval Patrick, all Democrats.

This year, the political pressure to pick another woman or a person of color is not as great as it was when Obama nominated Sonia Sotomayor.

But Obama knows that a big confirmation battle could deplete his political capital and make it much harder to get his proposed legislation on climate change and other matters through Congress. For their part, Senate Judiciary Committee Democrats Charles Schumer of New York and Arlen Specter of Pennsylvania have said they want to avoid a big battle.

In addition, although Obama surely would not pick a conservative, the former law professor does not appear to share some supporters’ passion for a strong left-liberal theorist who could someday lead the charge but who would be hard to sell now to the independent voters whose support the president seeks to reclaim.

Here are sketches of the four candidates on the shortlist:

• Elena Kagan. The solicitor general is the "prohibitive front-runner," wrote Tom Goldstein, a leading Supreme Court litigator and the founder of Scotusblog, in a widely read February 23 piece on his website. I would strike "prohibitive."

Kagan’s assets include her outstanding record as a professor and dean at Harvard Law School, where she brought in some conservative professors and calmed the school’s politically contentious faculty; her experience as a domestic policy aide in the Clinton White House; her age (only 49); and — crucially — her careful avoidance of a paper trail of controversial statements for critics to attack.

Indeed, Goldstein wrote, "I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called "a moral injustice of the first order."

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute "largely meaningless." This helps to explain the 31 Republican votes against confirming her as solicitor general.

Many liberal critics are unhappy with Kagan’s arguments as solicitor general supporting the "state secrets" doctrine, detentions without trial, and other broad Obama claims of executive power to fight terrorism — some of them similar to the Bush policies that liberals hate. But their angst would be no obstacle to confirmation.

• Diane Wood. She appears to be the most liberal of the shortlisters and is applauded in progressive circles for going toe-to-toe with the conservative intellectual heavyweights on her court. For this reason, she might have the bumpiest confirmation.

Wood, 59, is highly respected for her intellectual firepower, careful preparation, and clear thinking and expression. She was won praise from some conservative as well as liberal colleagues and from lawyers appearing before her.

Before President Clinton put her on the U.S. Court of Appeals for the 7th Circuit in 1995, she was a University of Chicago law professor — and working mother without benefit of pregnancy leave — and a high-ranking antitrust expert in the Clinton Justice Department.

Some conservatives have assailed her as a hard-left judicial culture warrior whose passion for abortion rights is so strong that (they contend) she has disregarded Supreme Court precedents; and whose writings suggest that she might indeed strip "under God" from the Pledge of Allegiance and make same-sex marriage a constitutional right.

Still, Wood’s overall record may be no more liberal than that of Stevens. She would be confirmed eventually, but she would surely draw more Republican fire than would Kagan or Napolitano, and much more than Garland.

• Merrick Garland. Another intellectually stellar, more moderate Democrat with no apparent land mines in his paper trail and the respect of Republican colleagues and senators alike, the 57-year-old Garland would be the easiest of the four to confirm by far.

In anonymous surveys of lawyers arguing before him, he has won glowing reviews as highly intelligent, open-minded, evenhanded, fair to all parties, and extraordinarily clear and thorough in his opinions.

"After only Judge Wood, D.C. Circuit Judge Merrick Garland is the most respected Democratic appointee now on the bench," as well as the most confirmable, Goldstein wrote. I rank Garland above Wood, given my preference for restrained, moderate consensus-builders. (Disclosure: Garland and I were Harvard Law School classmates and are friends.)

Among Garland’s assets are his 1989 decision to leave a lucrative law partnership to become a federal prosecutor in D.C.; his supervision of a range of major civil, criminal, and national security matters in the Clinton Justice Department, including the initial proceedings against Oklahoma City bomber Timothy McVeigh; and his skill at finding common ground with colleagues across the ideological spectrum. Conservative bench mates have joined logically compelling Garland opinions on ideologically divisive issues.

All of this was not enough to put Garland on Obama’s all-woman shortlist in 2009. This year, the political pressure to pick another woman or a person of color is not as great. But would Obama choose a white male nominee who seems clearly less liberal than Stevens?

• Janet Napolitano. Some media handicappers have written off her prospects because of two much-ridiculed gaffes: saying that "the system worked" after the near-success of a suicide bomber’s attempt to blow up a Detroit-bound airliner on Christmas Day, and speaking earlier of terrorist attacks as "man-caused disasters."

But don’t count the tough, no-nonsense Napolitano out; these lapses were out of character. Obama thinks highly of her, and "if the president is looking for someone who is not a Court of Appeals judge like all current members of the Court, she would be at the top of the list," thanks to her broad political experience, says a source familiar with the selection process and Obama’s thinking.

Before taking over at Homeland Security, the 52-year-old Napolitano was a federal prosecutor, then Clinton’s U.S. attorney in Arizona, and subsequently the elected attorney general and governor of Arizona. She worked effectively with, and often against, the Republican state Legislature, and she won re-election by a wide margin in 2006 by taking centrist, tough-on-crime positions and pushing programs for children that appealed to Republican women.

Some Court-watchers complain that these four possibilities are unexciting, even boring. In my view, that’s a plus.

This article appeared in the Saturday, April 10, 2010 edition of National Journal.

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What matters on the Supreme Court is those 5 percent of cases that are truly difficult… In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or… whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" — and to all others — not to mention the constitutional command to provide all persons "the equal protection of the laws."

Conservative Edward Whelan, head of the Ethics and Public Policy Center, recently wrote in National Review Online’s Bench Memos that "Obama’s own language shows that he is seeking judges who will favor particular classes of people" in "what he calls the ‘truly difficult’ cases but what one reasonably suspects are any cases of sufficient importance in which application of traditional legal analysis doesn’t yield the result that Obama really wants."

Ruth Marcus rejected such criticisms in her May 6 Washington Post column as an "absurd caricature" of Obama’s meaning. The president’s point, Marcus argued, is that "all judges are guided to some extent, consciously or unknowingly, by their life experience" — not that they should make legal rulings based on "the sympathy evoked by one party or the other."

Professor Orin Kerr of George Washington University Law School has posted a nuanced analysis on the Volokh Conspiracy blog that I find persuasive. "We need to recognize the important but usually overlooked differences in how different people understand the role of ambiguity in judicial decisionmaking," Kerr wrote. "Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment. I think those differences explain a lot about contemporary legal debates, including, I suspect, President Obama’s view of the Supreme Court and the role of ’empathy.’"

As Kerr details, Obama comes close to suggesting that he wants his justices to side with the "the powerless" against "the powerful" in the large number of close cases that pit individuals against big corporations, employees against employers, criminal defendants against cops, and the like.

Indeed, Obama accused then-Judge Samuel Alito of doing the converse, in voting against his Supreme Court nomination in 2006. Obama said that Alito "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans’ individual rights. If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he’ll rule in favor of the employer. If there’s a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he’ll rule in favor of the state."

In other comments, Obama has said: "We need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges."

A few thoughts of my own:

First, Obama is quite right to stress that the hardest cases that reach the Supreme Court cannot be resolved by cranking the facts into a human computer who will spit out an ideologically neutral ruling. The law is often ambiguous. Very few contemporary constitutional questions are clearly answered by the original meaning of the Constitution and its amendments. And countless Supreme Court precedents — Roe v. Wade, to name just one — have departed so far from whatever the original meaning was that today’s justices must often choose between following original meaning and following precedent.

Obama is also right if he is saying that empathy for all of the people affected by a case, in the sense of coming to a sympathetic understanding of their positions, is essential to good judging.

But that’s not always what he seems to be saying. Rather than equal empathy for all, some of the Obama statements quoted above stress special empathy for "the powerless," for single mothers, for employees as against employers, for criminal defendants, and the like. How does that square with the oath to do equal justice to the poor and to the rich?

In addition, law-making is supposed to be mainly a democratic exercise driven by voters, not a judicial exercise driven by empathy for selected groups. Indeed, our laws as written already reflect the balance of interests — of empathy, if you will — that the democratic process has struck between the powerless, the powerful and other groups.

A leading example is a case often cited by Obama and other "empathy" advocates as showing that the Supreme Court’s conservatives lack empathy for the powerless. That was the 5-4 decision in 2007 against Lilly Ledbetter‘s claim that she had been a victim of pay discrimination based on sex, because she did not file her lawsuit until after the expiration of the 180-day time limit for suing that was specified in one of the two laws that she invoked, Title VII of the 1964 Civil Rights Act.

In my view, the court’s decision was probably a correct application of Title VII’s unusually short time limit. It reflected the balance that Congress had struck to encourage settlement of employment disputes by negotiation rather than litigation. The time limit was also designed to guard against employees waiting for years to bring a complaint, until after relevant evidence had been discarded and witnesses who would support the employer had died — which happens to be exactly what Ledbetter did.

All this was lost in an explosion of liberal outrage fanned by rampant distortions of the facts by the media, congressional Democrats and President Obama. They claimed, among other things, that Ledbetter had learned that she was paid less than most male colleagues long after all time limits for suing had expired, and that the evidence left no doubt that she had been a victim of gender discrimination. The first claim was flat-out false and the second was highly debatable, as I have detailed in two columns.

The near-deification of Lilly Ledbetter helped push a bill overruling the court’s decision through Congress in January. Whether the result will be to bring better justice for victims of job discrimination or to make employers more reluctant to hire women and minorities who might end up suing them remains to be seen.

Another reason to be wary of the "empathy" criterion is that decisions by justices (as well as legislators) who thought that they were helping the poor and the powerless have often had the unintended consequence of hurting a great many poor and powerless people in the long run. Examples include heavy racial affirmative action preferences for blacks and Hispanics in college admissions, judicial decisions requiring due process hearings before disruptive students can be disciplined, rent control laws, and generous welfare programs for single mothers.

To explain:

• Heavy preferences often come at the expense of better-qualified, relatively powerless whites and Asians whose family incomes are below those of the relatively affluent black and Hispanic recipients of the preferences. Such preferences have also been shown to harm many of their supposed beneficiaries, by stigmatizing the achievements of well-qualified minorities who don’t need preferences and by putting underqualified minorities at a competitive disadvantage with other students, leading to high dropout rates, extraordinarily high failure rates on bar exams, and the like.

• Judicial decisions requiring due process hearings before disruptive students can be disciplined have often had the effect of making it impossible for other students to learn. The reason is that the hearing process is so arduous that many teachers and principals see themselves as essentially powerless to get chronically disruptive students out of the classroom.

• Rent control laws, which help some lower-income tenants in the short run, hurt many more in the long run by decreasing incentives for builders and landlords to cater to the needs of low-income tenants. Such laws are also exploited by affluent people who hold on to luxury apartments for decades while paying rent far below their market value.

• And generous welfare programs for poor single parents have played a leading role in hurting the inner-city poor, by providing incentives to have children out of wedlock without working to support them. Supreme Court precedents that bar states from cutting off welfare payments without due process hearings feed the same destructive incentives.

Another problem with the "empathy" criterion is raised by Justice Ruth Bader Ginsburg‘s recent remarks in an interview with USA Today about a case in which school officials looking for pain medicine strip-searched a 13-year-old girl. Ginsburg complained that the male justices, some of whom seemed skeptical of a lawsuit seeking monetary damages from the school officials who strip-searched the girl, didn’t understand what a sensitive age that is for young females. "They have never been a 13-year-old girl," she said, in stressing the need for more female justices.

I share Justice Ginsburg’s view that Obama should add one or more women to the court. An almost-all-male court is an unfortunate symbol at a time when women are rising to parity in so many other areas of the legal world, and when many superbly qualified women are available.

But does Ginsburg’s statement, taken to its logical endpoint, suggest that female justices should tilt the law in favor of female litigants, at least some of the time?

Well, if Ginsburg’s statement means anything, it means that a strip-search might be more traumatic for a 13-year-old girl than for a 13-year-old boy. How would she know that? Unlike her colleagues, she has never been a 13-year-old boy.

There may be cases in which a female justice’s life experience might help her understand a female litigant’s problems better than male justices. But I doubt that the strip-search case was one of them. Not unless Ginsburg meant to suggest that the justices should sometimes rule in favor of strip-searched 13-year-old girls while ruling against strip-searched 13-year-old boys in otherwise identical fact patterns.

And what else could she mean?

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I don’t know for sure, but I can guess: Apart from vetting the leading prospects to flush out any character flaws, ethical issues or tax problems of the kind that have plagued some Obama nominees, the White House is probably devoting lots of attention to ideological vetting.

The goal of this process, which reportedly started long before it was clear that there would be a Supreme Court vacancy to fill, is to forecast insofar as possible how each prospect might rule on the biggest issues likely to come before the court in the next few years.

Like any president, Obama would prefer a nominee likely to uphold his own personal convictions on such issues as presidential war powers, abortion, racial affirmative action, voting rights, gay rights, religion in public life, assisted suicide, campaign finance reform and use of a litigation as a tool of social reform. Indeed, as someone who taught constitutional law, Obama may care more than most presidents about how his nominee will handle the big issues.

Ideological vetting of judicial nominees is a tricky business. A quotation often ascribed to President Lincoln helps explain why. Lincoln wanted to appoint a chief justice who would uphold the Union’s legal tender law, which required people to accept paper money as payment for private debts. "We cannot ask a man what he will do," Lincoln supposedly said, "and, if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known."

But these days, many Supreme Court aspirants take pains to avoid making their opinions known. That’s one legacy of President Reagan’s 1987 nomination of conservative judge Robert Bork. His record of outspoken attacks on major Supreme Court precedents made it easy for critics to claim that he would take a wrecking ball to a long list of constitutional rights, and ultimately to defeat him.

With so many leading prospects hiding their views, how is a president to avoid buying a judicial pig in a poke? Why not just ask, or have subordinates ask, the prospects to state their current views on all the big issues? After all, the views of the current nine justices are a matter of public record. Why shouldn’t prospective nominees put their own cards on the table?

The answer is that — as the Lincoln quotation indicates — the nature of any such conversation would compromise the independence and integrity of the judiciary by creating a huge temptation for the would-be justice to say whatever she or he thinks the president wants to hear — even to make implicit promises to rule as the president would prefer. It would be impossible for the president or anyone else to trust the sincerity of any nominee whose responses to vetters’ questions tracked the president’s own views.

So while White House vetters and senators alike often ask nominees to discuss judicial philosophy in a general way, it is seen as taboo for the White House to ask about specific issues. And any nominee who admitted to answering such questions from White House vetters would expose herself not only to attacks but also to demands that she share the questions and answers with the Senate. This, in turn, would make the nominee vulnerable to attacks by various coalitions of opponents.

This helps explain why every White House depends heavily on interviews with prospects’ professional colleagues and friends to learn what they have said about various issues in private conversations, the better to discern how they are likely to rule. I suspect that a lot of this kind of vetting is going on this week.

The presidential need to have some idea how prospects will rule also helps explain why — despite complaints that the court needs more diversity of professional background — all Supreme Court appointments in recent years have gone to federal appeals court judges.

Most such judges reveal enough about their ideological leanings through their opinions, concurrences and dissents to provide a fairly clear picture of where they are likely to fall on the Supreme Court’s ideological spectrum. At the same time, because appeals court judges are obliged to follow Supreme Court precedent, the more careful ones rarely take such bold or imprudent positions as to energize critics.

In any event, no matter how careful the vetting process, there is no guarantee that the eventual nominee will rule as the president wishes. Lincoln, for example, thought that he had taken "a man whose opinions are known" when he named as chief justice his Treasury secretary, Salmon P. Chase, who had helped draft and advocate the legal tender law. But Chase later reversed course.

At least Chase had the decency to wait until five years after Lincoln’s death to strike down his legal tender law. President Truman was very much alive, and upset, when two of the four personal cronies he had put on the court joined the landmark decision striking down his seizure of the steel mills during the Korean War. "Whenever you put a man on the Supreme Court," Truman later complained, "he ceases to be your friend."

It’s a good bet that Obama, who is at some risk of seeing his own war powers hemmed in by the justices, will do a more careful job of ideological vetting than Truman did.

CORRECTION: The original version of this report misstated Obama’s teaching status at the University of Chicago Law School.

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Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.

The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. By this I mean deference to elected officials unless they violate clear constitutional commands or show gross irresponsibility. The lack of such restraint is what I mean by "judicial activism."

A restrained liberal justice might, for example, hope for legislative recognition of same-sex marriage (as do I) but decline to rewrite the Constitution to override the democratic process on the issue by judicial decree.

This is not to suggest that the president will pick a centrist, let alone a conservative. Filling moderately left-of-center Justice David Souter’s seat with anyone seen as more centrist would be a stunning abandonment of Obama’s campaign stance that would infuriate his liberal base.

But nominating a crusading liberal activist could seriously jeopardize the president’s own best interests, in terms of policy as well as politics. And although some of Obama’s past statements are seen by critics as a formula for judicial activism, he has also shown awareness of its perils.

As a matter of policy, consider Obama’s most important responsibility: protecting our national security from jihadist terrorism and other threats.

As I have noted briefly, the intersection of law and national security will provide the most consequential cluster of issues that the Supreme Court will consider over the next decade or more. Obama surely understands that the Court’s response to his national security policies will be more important by far to the success of his presidency than any decisions on abortion, race, religion, gay rights, crime, or free speech.

Obama’s national security policies are already under relentless attack from leading advocates of liberal judicial activism, such as the ACLU. Indeed, most (or at least many) lawyers and scholars who favor a liberal activist approach on social issues also tend to support relatively broad judicial power to overrule the president on national security.

The justifiable rejection of President Bush’s wildly excessive claims of near-dictatorial war powers by the five more-liberal justices — including Souter and swing-voting centrist Anthony Kennedy — has a downside for Obama. The justices, followed by the lower courts, have now asserted far more power than ever before to oversee and second-guess presidential decisions about national security.

Meanwhile, in moving from campaign mode to the presidency, Obama has had many reasons to worry about such judicial second-guessing. One federal District judge has rejected the administration’s claim that it can detain suspected jihadist fighters captured outside Afghanistan at Bagram Air Base without judicial oversight. A federal Appeals Court has rejected the White House’s efforts to use the "state secrets" doctrine to block lawsuits by former detainees who claim they were tortured.

Still other lawsuits demand the release of any detainees in the war on terrorism who cannot be convicted of crimes, and publication of classified CIA documents that Obama would rather keep under wraps. A reported, perhaps tentative plan by administration officials to use "military commissions" instead of ordinary courts to try some of the detainees for war crimes would surely bring more legal attacks. And for the foreseeable future, squadrons of liberal lawyers will be suing a range of companies for cooperating with the president on matters such as wiretaps, "renditions" of suspected terrorists to other countries, and other actions deemed by Obama to be vital to national security.

The more the courts smile on such lawsuits, the harder it will be for the president to protect the country. Indeed, some human-rights and civil-liberties activists have done their best to hamstring virtually all of the surveillance, search-and-seizure, detention, and related powers on which the government depends to find and disable suspected terrorists.

It’s unclear how Obama would fare in such cases with the current Court. But he would surely run the risk of seeing some of his key security policies overturned if he were to choose someone who turns out to be more aggressive than Souter in curbing presidential war powers.

This logic argues for a nominee likely to be relatively deferential to presidential power. But not that many prominent lawyers combine that kind of deference with a liberal activist approach to social issues such as abortion, race, and gay rights.

As a political matter, Obama would benefit considerably from a quick, relatively easy confirmation proceeding. The lopsidedly Democratic Senate would eventually confirm just about anyone Obama might choose. But Republicans will be looking to drag out the Senate confirmation process and to portray the nominee as a liberal activist determined to override the will of the voters.

Such efforts will be more successful if the attacks ring true in light of the nominee’s record. This could burn up precious floor time that Obama needs to push through his hugely ambitious policy agenda. It could also endanger some congressional Democrats in 2010 elections and thereafter.

Now consider what Obama has said about judicial activism. Conservatives point accusingly to his stated preference for judges with "the empathy to understand what it’s like to be poor or African-American or gay or disabled or old." Such critics see this as an endorsement of judicial activism (as well as of judicial bias). But Obama, an accomplished constitutional scholar in his own right, has also displayed understanding of the case for judicial restraint.

In his 2006 book, The Audacity of Hope, Obama spoke favorably of "moderate nominees who can garner some measure of bipartisan support." While that can be seen as political positioning, Obama also cautioned against bold judicial social engineering in a 2001 radio interview in which he spoke approvingly of "redistribution of wealth."

John McCain’s presidential campaign jumped on that phrase, suggesting that Obama had endorsed judicial redistribution of wealth. This was false. In fact, Obama’s complaint was that "the civil-rights movement became so court-focused" as to neglect "political and organizing activities." He added a note of caution against seeing the Warren Court’s extraordinarily bold attack on an entrenched system of racial oppression as a precedent for a judge-led war on poverty.

"The Constitution is a document of negative liberties," Obama said in that interview. "[It] says what [government] can’t do to you … but it doesn’t say what [government] must do on your behalf…. I am not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way…. The court is not very good at it and politically it is hard to legitimize opinions from the court in that regard…. So I think that although you can craft theoretical justifications for … bringing about economic change through the courts, I think that as a practical matter that our institutions are just poorly equipped to do it."

Obama also suggested then that "unelected judiciaries making laws in what is supposed to be a democracy" undermined the legitimacy of their decisions. Former colleagues at the University of Chicago Law School, where he taught, have described the president as skeptical of the courts’ ability to improve on the political process in resolving big public policy issues.

All of this suggests that Obama’s nominee may disappoint believers in crusading judicial activism. It also suggests that the president may have a very hard time finding his ideal justice.

Even if he can make a list of candidates who are liberal — but not activist — on social issues and not so liberal on curbing presidential war powers, he would feel pressure to cross off any who happen to be white males, in order to diversify the Court’s demographic profile. He also wants to diversify the professional profile of a Court now consisting of nine federal Appeals Court alumni, eight of whom studied law at Harvard or Yale.

What Obama needs, in short, is an intellectually stellar, not-too-old, Hispanic woman lawyer with empathy for the powerless; views on social issues that are predictably liberal but not so activist as to inflame the Right; views on presidential war powers that are predictably deferential but not so much so as to inflame the Left; broad real-world experience; and, of course, rapport with Obama.

No such human being exists, I suspect. I also suspect that the president may come to see the opportunity to choose a new justice as a lot less fun than a law professor might imagine.

This article appeared in the Saturday, May 9, 2009 edition of National Journal.

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Random thoughts on Justice David Souter, his expected retirement and next steps for President Obama:

• Souter was a stealth nominee when he was named by President George H. W. Bush in 1990 — many liberals at the time denounced him as a closet right-winger, and he was privately touted as such by then-White House Chief of Staff John Sununu. Souter’s fulsome praise of Justice William Brennan (whom he succeeded) at his confirmation hearing suggested that he might lean more left, and he has been consistently left of center since he got to the court.

He moved in his first few years from moderate-liberal to liberal — most notably in joining the Sandra Day O’Connor-Anthony Kennedy-Souter swing opinion that reaffirmed (but slightly narrowed) Roe v. Wade in the big 1992 decision in Planned Parenthood v. Casey. Souter became a reliable member of the liberal bloc on every major issue and most, if not all, minor issues. The major issues — abortion, race and affirmative action, presidential war powers versus civil liberties, gay rights, church-state issues and campaign finance. But unlike Harry Blackmun, and to some extent Warren Burger and John Paul Stevens, this is not a guy who started out conservative or centrist and then "evolved" — he was never conservative.

• With such a big Democratic majority in the Senate, Obama could get just about anyone confirmed easily. But the Republicans could bleed him some politically if he made an exceptionally controversial pick.

• Obama would probably prefer to make a truly outstanding choice, and if possible a consensus choice. He will not see this as some exercise in political gamesmanship. He may also want to break the boring pattern of staffing the Supreme Court with cloistered appellate judges. He said during the campaign that he liked the Earl Warren model — a big-time politician who can lead the court by force of personality and convictions.

• Obama has said he wants a Supreme Court justice to have empathy for the powerless; he voted against Justices John Roberts and Samuel Alito, accusing them of siding with the powerful. Obama is, of course, pro-choice on abortion and pro-civil liberties. But he applauded a conservative Second Amendment decision last June and assailed a liberal decision striking down the death penalty for raping a child. Both stances were widely seen as more politics than principle, but he may want to keep sounding the same political notes on the judicial front.

• Presidential war powers seems an especially interesting issue area to watch. Now that he’s president — and taking some of the same positions that George W. Bush took about his power to detain suspected terrorists without criminal charges — Obama might like to reverse the 5-4 majority (which included Souter) that kept ruling against Bush in the Guantanamo cases. He could swing the court in his favor by replacing Souter with someone more pro-presidential-power. But as a general rule, such types often seem relatively conservative on social issues. So finding someone who is pro-president on war powers and liberal on social issues while also satisfying other criteria might be tricky. Hunch: Solicitor General Elena Kagan may be best bet on that, although she has not taken public stances on presidential powers.

• There is a big political premium on having a Hispanic — ideally a woman — especially because Obama is likely to disappoint those voters on immigration reform. Sonia Sotomayor, a federal appeals court judge based in New York, is by far the most prominent Hispanic female judge, but she has a problem first identified in my column last December on the New Haven firefighter reverse discrimination decision she joined (likely to be reversed by the Supremes), as discussed below.

• Other Hispanic women who come to mind (the bench is not that strong): Kim Wardlaw of the 9th Circuit; Vanessa Ruiz of the D.C. Court of Appeals (which is far less prestigious than the U.S. Court of Appeals for the D.C. Circuit).

• One Hispanic male whose name has come up so far is Ruben Castillo, a Chicago district court judge.

• Non-Hispanic possibilities include Kagan, a former Harvard Law School dean who is well respected by many conservatives, and whose views on many issues are not publicly known (a potential plus?); and 7th Circuit Judge Diane Wood, an exceptionally smart former law professor without obvious warts whom Obama knows from Chicago.

• Hillary Clinton? Probably wouldn’t want it. Other long shots, all of them African-American women, that have been mentioned: Valerie Jarrett, a senior White House adviser and a longtime friend of Obama; Teresa Wynn Roseborough, a Clinton-era deputy assistant attorney general who is now in private practice; and Leah Ward Sears, chief justice of the Georgia Supreme Court.

• Cass Sunstein, the regulatory czar-nominee at the Office of Management and Budget and a brilliant legal scholar who knows Obama very well from the University of Chicago Law School, and Judge Merrick Garland of the D.C. Circuit would be great choices but for their two crippling disabilities (at least for Obama’s first pick): race and gender. Judge David Tatel, the brilliant, sensibly liberal D.C. Circuit judge, has the same two disabilities and is much too old (67). He also happens to be blind.

• Sotomayor’s problems: She apparently does not know Obama very well personally, if at all. There is a widespread perception on the right and among some moderates who have seen her close up that she is far more liberal than anyone now on the Court. Perhaps her biggest problem is her vote in the potentially huge Ricci reverse-discrimination case in New Haven that was heard at the Supreme Court last week. It was an extremely pro-reverse discrimination decision and appeared sneakily (if unsuccessfully) designed to escape notice. And the Supremes seem very likely to reverse it (probably 5-4, with Kennedy joining the conservative bloc), possibly with a good whack at the lower court decision. See below excerpts from my Dec. 13, 2008 column.

In their lawsuit, Ricci and his fellow plaintiffs claimed that the city, Mayor John DeStefano, and other defendants had violated their rights under the Constitution’s equal protection clause and under federal civil-rights laws.

U.S. District Judge Janet Arterton of New Haven dismissed the case. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.

Arterton was appointed by President Clinton. So were the three 2nd Circuit judges who heard the initial appeal, including Sotomayor…. The three-judge panel initially deep-sixed the firefighters’ appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.

Then the Circuit’s more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote. All but one of the seven is a Clinton appointee. And all six of the dissenters were named by President George W. Bush or his father, with the exception of Jose Cabranes, a moderate Clinton appointee.

Writing for the six dissenters, Cabranes said that the majority "failed to grapple with the questions of exceptional importance raised in this appeal," and he urged the Supreme Court to do so. He also raised the question of whether the case involved "an unconstitutional racial quota or set-aside."

"At its core," Cabranes wrote, "this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

Cabranes stressed that despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel’s "perfunctory disposition" oddly contained "no reference whatsoever to the constitutional claims at the core of this case."

Five of the majority judges, including Sotomayor, retorted that New Haven’s decision to discard the test results and deny what would otherwise have been virtually automatic promotions to the highest-scoring white and Hispanic firefighters was "facially race-neutral." The reason? Because none of the low-scoring, ineligible African-American firefighters was promoted either. These five judges also endorsed Judge Arterton’s conclusion that the city’s decision was justified by fears that promoting the high-scoring whites might violate Title VII of the 1964 Civil Rights Act and bring a discrimination suit by the low-scoring blacks.

Find Cabranes’ dissent here (starts on p. 9 of this document).

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President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer. Ginsburg, 75, has no app…

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer. Ginsburg, 75, has no apparent plans to leave the court, and she may well serve out Obama’s term. (She survived a 1999 bout with colon cancer without missing a day on the bench.) But both she and another liberal justice-88-year-old John Paul Stevens-are the oldest and thus deemed the most likely to step down in the next four to eight years. When that happens, Obama will have a tough choice to make, one that seems guaranteed to upset a good portion of the country.

Obama has given some hints of what he’s looking for. He has cited as a model justice Earl Warren-whom liberals love and conservatives regard as an activist social reformer with no place on the bench, at least not in today’s world. At a minimum, Obama’s backers will be looking for him to appoint someone as liberal as the justice he replaces. If it’s Ginsburg, the consensus is that Obama will have to pick another woman. He might also want to choose the first Latino justice, or perhaps an African-American, which might help to dilute conservative opposition; Republicans might hesitate at taking a harsh stance against, for instance, the first nominated Hispanic.

Conservatives concede that the Democrat-led Senate would almost certainly confirm any Obama nominee, absent any damaging revelation. But the more liberal the nominee, the more contentious the confirmation hearings will be. The president’s stance as a consensus builder might suffer if his first choice seems likely to support liberal causes such as gay marriage.

Conservative critics sense a preference for liberal "judicial activism" in Obama’s claim that "the truly difficult" legal cases "can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." He voted against Chief Justice John Roberts and Justice Samuel Alito, complaining that the two Bush appointees had sided with "the powerful against the powerless." When it’s Obama’s turn to pick a nominee, he’ll either sacrifice some political good will or he’ll upset his base. There’s not much middle ground.

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To woo conservatives who have long mistrusted him, McCain has bashed "activist judges" who "legislate from the bench." He has cited Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as his models of restraint.

Obama, who taught constitutional law at the University of Chicago, voted against the confirmations of Roberts and Alito, saying that they too often side with "the powerful against the powerless" and lack "empathy" for ordinary people.

The replacement of a retiring liberal justice by a conservative McCain appointee, or of a conservative by a liberal Obama appointee, could give the Supreme Court an ideologically solid majority for the first time in decades and gradually make a dramatic impact on the course of the law. That’s because the current Court is so closely — and deeply — divided. It has four liberals, four conservatives, and one justice (Anthony Kennedy) who swings depending on the issue.

The influence of the next president’s appointees on the judiciary will be profound, if less visible, even in the unlikely event that he has no opportunity to replace any of the Supreme Court’s current justices. The rulings of the nearly 100 judges appointed over the next four years to fill vacancies on lower federal courts will be final in the vast majority of cases because the Supreme Court will review only a minuscule percentage of them. And recent history shows that Republican-appointed judges tend to be conservative and Democratic appointees tend to be liberal.

How dramatically the judiciary will change depends on two variables beyond any president’s control: Which, if any, justices will retire or die over the next four to eight years? And will the next president be able to push ideologically controversial nominees through the Senate?

McCain would be more likely to tip the Supreme Court’s balance to the right than Obama would be to tip it to the left. That’s because the three justices deemed most likely to retire are liberal: John Paul Stevens, Ruth Bader Ginsburg, and David Souter. Stevens, 88, and Ginsburg, 75, are the oldest justices. Souter is only 69, but he has told friends that he longs to retire to his home in New Hampshire.

On the other hand, it is doubtful whether McCain could get a strong conservative confirmed by a Democratic-controlled Senate. If McCain were to surmount that obstacle, the Court could soon be outlawing racial preferences, allowing more restrictions on abortion, and sweeping away gun control laws. It could also be making it harder for women, minorities, and the elderly to win discrimination lawsuits and for consumers to win personal-injury lawsuits, while clearing the way for greater use of the death penalty and possibly even overruling Roe v. Wade.

Obama’s chance of replacing a conservative with a liberal is limited by the fact that the oldest conservative justice, Antonin Scalia, is only 72, as is Kennedy. The next oldest conservative is 60-year-old Clarence Thomas.

But if a conservative (or Kennedy) does step down, Obama would have a good chance of getting a Democratic Senate to confirm a liberal successor. And a Court with one more liberal could soon be ordering federal funding for abortion; encouraging more-aggressive use of racial and gender preferences; overturning the "don’t ask, don’t tell" law on gays in the military; expanding judicial oversight of foreign wars; barring all forms of state aid to religious schools; banning the Pledge of Allegiance from public schools unless "under God" is stripped out; swinging the doors open to more lawsuits; declaring a constitutional right to assisted suicide; and perhaps expanding welfare rights.

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