STEVE INSKEEP, Host:
The next president might appoint one, two or more justices to the United States Supreme Court. He'll also make appointments to the lower courts. So this morning, we're going to discuss that with NPR's Nina Totenberg as we consult some of our in-house experts about the next administration. Nina, good morning.
NINA TOTENBERG: Good morning.
INSKEEP: Let's talk first about the president-elect, who would be making these decisions if, say, Supreme Court justices retire. What background does he bring to this?
TOTENBERG: Barack Obama probably has more knowledge, and cares about the substance of this, more than any president in memory, in a broad sense. He was a constitutional law professor at the University of Chicago; he devoted a chapter of his book to his idea of what he thinks the role of the court should be and how one should pick Supreme Court justices.
INSKEEP: And let's emphasize we're not saying he's right or wrong; we're saying he's thought about it a lot.
TOTENBERG: He's thought about it a lot. And people who know him well, very conservative people who, for example, served on the law review with him, have a lot of respect for him, but don't agree with him about a lot of stuff, say, this is a guy who really has thought about this.
INSKEEP: So, he was the editor of this respected law-school publication. He's thought about this issue a lot. What conclusions does he appear to have come to about what kind of a person, say, should be serving on the Supreme Court?
TOTENBERG: Well, I think you can take something from the fact that he voted against both of President Bush's nominees to the Supreme Court, Chief Justice Roberts and Justice Alito. And he didn't seem to have any hesitation about that, was perfectly willing to defend it, and said he simply disagreed with their view of how to interpret the law.
INSKEEP: Well, let's listen to some Barack Obama's literal words on this subject. He actually did a book on tape - he read his book out loud - and this is something that he said about different Supreme Court justices.
(SOUNDBITE OF AUDIOBOOK "THE AUDACITY OF HOPE")
INSKEEP: (Reading) Anyone like Justice Scalia, looking to resolve our modern constitutional dispute through strict construction, has one big problem: The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted not just about minor provisions, but about first principles; not just between peripheral figures, but within the revolution's very core.
INSKEEP: Nina Totenberg, what do those words tell you?
TOTENBERG: They tell me that he is not a subscriber to the idea of originalism, which is Justice Scalia's view - to oversimplify it - that the words on the piece of paper mean exactly what they say, and you can know what they meant.
INSKEEP: OK. Now, we know the approach that Barack Obama - or something anyway - about the approach Barack Obama might take to naming justices. What vacancies might possibly come up on the U.S. Supreme Court?
TOTENBERG: Well, I think we're almost certainly going to have two, at least two, and possibly three. Justice John Paul Stevens is 89, or will be 89, in April, and he's the rational choice to go first. But I've got to tell you, he plays very aggressive tennis, he's sharp as a tack, and those who disagree with him, whenever they lose, they say, the fine hand of Justice John Paul Stevens is behind crafting this majority. So, he's one. Justice David Suiter, who's a lot younger - he's 68 - desperately, desperately wants to leave.
INSKEEP: Why?
TOTENBERG: He hates Washington, and he'll put it really that way. He hates Washington, he wants to go back to New Hampshire, and he is itching to leave. And I would bet a lot that those two men are having a conversation, and Suiter is saying, look, if you aren't going to go this year, John - to John Paul Stevens - I am.
INSKEEP: Now, who's the third person that might go? You said there could be three.
TOTENBERG: Well, the next oldest person is Ruth Bader Ginsburg, who had colon cancer nine years ago, but she says she has no intention of going anywhere - right away, anyway.
INSKEEP: Now, Nina Totenberg, when you name some of the people who might plausibly leave in the near future from the Supreme Court, you seem to be naming people who are, more or less, on the so-called liberal wing of this Supreme Court. Does that mean that if they leave and Obama replaces them, that the composition of the court doesn't really change that much?
TOTENBERG: You've got it. The conservatives will still have a majority on most issues.
INSKEEP: We could go through a lot of names, I'm sure, but can you just name one person or maybe two that seem like obvious candidates to Democrats to be promoted to the Supreme Court or named to a high judicial post?
TOTENBERG: Female, female, female.
(SOUNDBITE OF LAUGHTER)
INSKEEP: You're saying that there's an urge to appoint women, is what you're saying.
TOTENBERG: Well, there's only one woman on the court, down from two. More than half the voters in this country are women. A hefty majority of them voted for Barack Obama, and I think it is inevitable that the first appointment will be a woman. A Hispanic woman would be even better. You know, Barack Obama's going to be interviewing these people, and these are going to be interviews unlike George Bush or Bill Clinton conducted. They are going to be, I think, fairly sophisticated legal interviews, and he's going to decide based on that.
INSKEEP: NPR legal affairs correspondent Nina Totenberg, thanks very much.
TOTENBERG: Thank you.
(SOUNDBITE OF MUSIC)
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