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Boxing Days | The Nation

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Diary of a Mad Law Professor

Boxing Days

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As Supreme Court Justice David Souter fades into the sunset of quirkily Hawthorne-esque New England character types, the Obama administration must gear itself up for what is likely to be its first significant fight. Yes, those of us on the left have cause for relief that this life-tenure opportunity bestows, after a long drought, the gift of a justice with wisdom and mercy. But the Supreme Court decides issues that will shape the course of American law for generations; all the favorite hot-button, "litmus test" issues of the foreseeable future will be negotiated by the judiciary sooner or later: immigration, reproductive rights, surveillance and wiretapping, equal pay, the power of unions, the right to privacy (particularly in still-nascent technological fields like genetic snooping) and discrimination not just on the basis of race, ethnicity or religion but also in the fields of disability access, lending laws and health insurance. If there is any unanimity in the Republican Party, the Supreme Court is the one area where its fiercest passion will be manifest.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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As of this writing, the names circulated as Souter's most likely replacement are all thoughtful, well-informed, spectacularly well-qualified women: Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor and Seventh Circuit Judge Diane Wood. This is good news, but still... no one should underestimate the contest that the choice will engender.

On one side of the ring is the chair of the Judiciary Committee, Senator Patrick Leahy. As an old-style, Kennedy-type Vermont liberal, he voted against President George W. Bush's (ultimately successful) nomination of Alabama Attorney General William Pryor to the Court of Appeals for the Eleventh Circuit in 2004. Pryor, an avid proponent of "states' rights," actively opposed almost every major piece of civil rights legislation of the 1960s and beyond--from voting rights to disability rights to reproductive rights, including the Supreme Court's decision in Roe v. Wade.

Nevertheless, Leahy's opposition to Pryor somehow converted him and other Democrats into the convenient target of a Republican campaign characterizing opposition to Pryor as "anti-Catholic." Culmination? That infamous confrontation on the Senate floor when Leahy expressed outrage at being called a bad Catholic and Cheney hurled a retort that is multifariously remembered as to its grammatical embellishment, but unanimously agreed to have included at least two crucial words, to wit: "fuck" and "yourself."

On to the other side of the ring stands Jefferson Beauregard Sessions III, the distinguished senator from Alabama. Pryor replaced Sessions as Alabama's attorney general when Sessions was elected to the Senate in 1996. That one could stand in for the other is not a surprise. Pryor and Sessions share a certain sensibility, although Sessions has been even more colorfully intrepid than anyone in our narrative thus far. For example, Sessions is alleged to have called the NAACP "un-American" and to have said that he didn't think the Ku Klux Klan was so bad--at least not until it was revealed that some of that august membership might have smoked marijuana.

To make a long story short, Senator Sessions is now the ranking Republican on the Judiciary Committee and so will lead the party's pack-attack upon whichever candidate President Obama puts forward. Sessions achieved that heady status only days ago, when Arlen Specter renounced his Republican Party membership and became a born-again Democrat, losing his committee seniority. Serving as second-ranking members on the Democratic and Republican sides respectively are Herbert Kohl of Wisconsin and Orrin Hatch of Utah, who, along with Leahy and Specter, were members of the committee when Anita Hill testified at the Clarence Thomas hearings.

Recently, Senator Specter said that not a day goes by that Republican colleagues don't take him to task for voting against Robert Bork's nomination in 1987. The residual bitterness from that battle has lived on to such a degree that the word "Borking" has worked its way into the Oxford English Dictionary with a decidedly partisan cast, meaning to savage, to vilify, to defame. This definition reflects Bork's fury about the opposition he faced from every major civil rights and women's group. The grounds for that opposition were summarized in a briefing book that Bork called "world class...scurrility." That brief was known as "The Biden Report"--so named because Joe Biden was chair of the Judiciary Committee at the time.

All this is to say that there is history among these players, and axes to grind. Appointing a Supreme Court justice is one of the most important powers of the presidency, and given the delicate balance of its current makeup, there is much at stake. My choice would be Elena Kagan. She is a graduate of Princeton and Harvard Law School and also holds a master's degree in philosophy from Oxford. Kagan is a superlative administrative law scholar and extremely well respected by a wide constituency of viewpoints. She began her academic career as a tenured professor at the University of Chicago Law School (hardly a bastion of liberal thought). From there, she moved on to Harvard, where she became its first female dean--and a highly effective one to boot (which is even more of an accomplishment considering the famously fractious nature of that faculty). Recently, Obama named her solicitor general of the United States--and again, she became the first woman to hold that post. Most important, I believe that Kagan has the intellect, the toughness and the fair-mindedness to be a great justice. She also has the dignity, commanding knowledge and quick-wittedness to rise above (or duck below) whatever recombinant ugliness the assembled partisans are likely to lob her way during the confirmation process.

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