Justice Napolitano?

Washington Matters

Justice Napolitano?

Only a fool or a partisan would weigh in this early on President Obama's nomination to replace Justice David Souter on the Supreme Court and I consider myself neither. But I must say I'm somewhat intrigued by reports suggesting Janet Napolitano is on the short list of possible nominees. So, perhaps, a few preliminary thoughts won't get me in too much trouble.

Napolitano, of course, already has a new job -- Secretary of Homeland Security, a sprawling agency responsible for everything from fighting terrorism, stopping the swine flu, natural disaster relief, immigration and about a dozen other high-priority problems. As a former Arizona governor, state attorney general and U.S. attorney, she's well suited to the job, with a background in many of the areas she has jurisdiction over. She also had the backing of Arizona's two Republican senators -- John McCain and Jon Kyl. And she's been close to Obama for quite a while, having been a very early supporter of his in the nomination battle against Hillary Clinton.

By all accounts, Obama has been impressed with her quick start in her post, pleased with the way she's handling the swine flu scare and confident she has the kind of pragmatic approach he favors. Having served as a popular governor who easily won reelection, she also has the real world experience he's attracted to and I suspect she fits his definition of empathetic -- the one quality he's cited as necessary for a nominee. It also helps that she's been confirmed by the Senate once, so the vetting process (including tax returns) shouldn't be an issue.

Not everyone is thrilled with the job she's doing. In fact, hardly a day goes by without some conservative group sending me an e-mail on why she should be impeached. Her more nuanced views on immigration and border security in light of Mexican drug violence are a source of controversy, and she got in trouble when her department sent out a memo to local law enforcement agencies suggesting they be on the alert for violence from "right-wing extremists" and warning that returning war veterans could be ripe for recruitment because of difficulties readjusting to their home communities. After several days of trying to explain and defend the memo, she apologized.


One reason Obama may be considering Napolitano is that he knows and is comfortable with how she thinks about homeland and other national security issues. Fights over Supreme Court justices tend to focus on social issues -- and there'll be plenty of scrutiny this time, too, of where any nominee stands on abortion, gay rights, gun control and a host of others. But as Stuart Taylor Jr. pointed out recently, the biggest issues confronting the court (and Obama) over the next few years are likely to be over the intersection of the nation's interest in security, law and privacy. As Taylor notes, now that Obama has shifted from running a campaign to running the country, he's finding a need for more latitude than he may have thought he'd need and he's less interested in a court that will second-guess his decisions on national security. If he genuinely feels comfortable with Napolitano's thinking in that area, that could be a deal maker.

None of this is to say that Obama is close to a decision or to suggest an endorsement of Napolitano -- just some interesting things to think about.