High court prospects may trip over own words

updated 2:44 p.m. ET May 22, 2009

WASHINGTON - The path to the Supreme Court is littered with obstacles that can trip up even the most politically nimble nominee. Some of President Barack Obama's possible picks may stumble on their own words.

Like defendants on trial, anything these prospective justices have said or done may be used against them by special interests hoping to influence the high court's makeup. Conservatives and liberals, businesses and trial lawyers, gun enthusiasts and gun-control activists, abortion opponents and abortion-rights supporters have a keen interest in a nominee's paper trail of rulings and legal arguments.

The Supreme Court selection process is expected to be intense, even though the White House and Senate are controlled by Democrats:

• Appeals Judge Diane Wood may be asked why she upheld an injunction barring anti-abortion protesters from blockading abortion clinics, in a case brought by the National Organization for Women.
• Former Harvard Law School Dean Elena Kagan would likely face questions over her objections to campus military recruiters, stemming from her disagreement with U.S. policy on gays serving in the military.
• U.S. Appeals Judge Sonia Sotomayor could be forced to explain siding with the city of New Haven, Conn., in a reverse discrimination case brought by white firefighters.
• Georgia Supreme Court Chief Justice Leah Ward Sears may face scrutiny from all sides on gay-rights issues. She ruled with the court in throwing out Georgia's hate-crimes law in 2004 as "unconstitutionally vague"; reinstating Georgia's gay marriage ban in 2006; declining to hear an appeal from a biological mother who wanted to terminate the parental rights of her former lesbian partner in 2007, a move viewed as a victory by gay-rights advocates; and tossing out Georgia's anti-sodomy law.

Potential problems
Wood in particular has already drawn attention from conservatives, who have wasted no time attacking her as someone they would least like to see on the court. The conservative Judicial Confirmation Network, in an advertisement, accused Wood of supporting fewer protections for religious students and abortion opponents than Nazis enjoy in Skokie, Ill., a reference to a famous freedom of assembly ruling.

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Wood's record shows she is hardly a liberal extremist. For example, she ruled against women at Ameritech Corp. who wanted decades-old maternity leave to count toward their benefits.

"We think that Ameritech has the better of this dispute," Wood wrote in a July 2000 ruling. "These employees cannot show the kind of intentional discrimination that would trigger the exception to the statutory protection afforded to seniority systems."

A similar case played out this month in the Supreme Court, which overturned a ruling by another possible court nominee, Judge Kim Wardlaw of the 9th U.S. Circuit Court of Appeals in San Francisco.

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Mirroring Wood's reasoning in the Ameritech case nine years ago, justices ruled that women at AT&T who took maternity leave decades ago can't sue to get that leave time counted toward their pensions. The leave occurred before it became illegal to discriminate against pregnant women. The case divided the court's liberals, with two justices dissenting, Ruth Bader Ginsburg and Stephen Breyer.

The women at AT&T who sued "will receive, for the rest of their lives, lower pension benefits than colleagues who worked for AT&T no longer than they did," Ginsburg wrote.

California Appeals Judge Wardlaw serves on what many conservatives regard as the most liberal federal appeals court in the U.S., a theme Republicans would use if she were chosen to replace retiring Justice David Souter.

In one decision that drew attention, Wardlaw ruled in favor of homeless people who were repeatedly arrested for sleeping on sidewalks in Los Angeles. The judge based her decision on the Eighth Amendment prohibition against cruel and unusual punishment.

Wardlaw, the first Hispanic woman appointed to a U.S. appeals court, was a Democratic political activist in the 1990s and her husband, Bill, has long been a major force in California politics. Both Wardlaws were close politically to President Bill Clinton.

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