It goes without saying that President Obama’s nominee to replace Justice David Souter on the Supreme Court should be a person of extraordinary intelligence, integrity and moral vision. And since archconservative justices John Roberts and Samuel Alito are in their 50s, it wouldn’t hurt if the first Democratic appointee in fifteen years is relatively young and in good health. It should also go without saying that the president has the prerogative and political capital to nominate a justice who agrees broadly with his interpretation of the Constitution as a document that protects “people who may be vulnerable in the political process, the outsider, the minority…those who don’t have a lot of clout” and grants a right to privacy. Luckily, there is no shortage of candidates who meet these criteria.
But what else should President Obama seek in a nominee? We asked a panel of legal experts to name their ideal Supreme Court justice. The selections (printed below and online at TheNation.com) are varied, from acknowledged front-runners to unlikely yet sterling legal advocates. Whomever Obama selects, the nominee will face loud opposition from the right, which has spent decades cultivating a reactionary theory of the Constitution and denigrating anything more enlightened as “legislating from the bench.” At stake here are not just decisions on issues like abortion, affirmative action, free speech and gay rights but the very status of the Court as an equal branch of government–the last and most dedicated guardian of the rule of law. During the Bush years, when the president and Congress dispensed with the writ of habeas corpus for detainees, the Court was the only branch of government that refused to go along. Justice Souter voted with the majority in those cases; his replacement should have no less reverence for the law. –The Editors
(senior editor, Slate): Choosing just one dream candidate to replace Justice Souter is like eating just one jelly bean. The whole field is thrilling. But a candidate I’m excited about is Stanford Law School’s Pamela Karlan. Karlan is young–born in 1959–but the crucial quality she would bring to the court is an epic constitutional vision: a story about progressive American jurisprudence as inspiring as the stories of originalism and textualism offered by Antonin Scalia and John Roberts. Karlan is co-author of a new book, Keeping Faith With the Constitution, that roots the liberal theory of judicial interpretation in the text, structure and history of the document and returns the Constitution to ordinary Americans. Karlan is, like Scalia, a gifted writer and brilliant legal thinker, with a deep, broad understanding that spans legal fields. If pure intellectual candlepower is as critical to President Obama as I suspect, she should be at or near the top of his list. I’d be remiss not to add that she may well be the funniest woman I know.
Finally, Karlan has that quality that Obama calls “empathy.” She gets it. As founding director of Stanford’s Supreme Court Litigation Clinic, she has helped represent defendants from criminal and civil rights matters, for free. She is an outside-the-Beltway, off-the-bench human who could breathe fresh air and fresh energy into the liberal wing of the Court.
(lawyer and author of See You in Court: How the Right Made America a Lawsuit Nation): Well, let’s say three appointments are coming up. First, I’d pick Earl Warren, because we need a strong governor used to getting his or her way–someone used to dominating a cabinet meeting. Second, I’d pick Hugo Black because I’d like to see a cracker barrel politician fanatically committed to the philosophy of Footnote 4 of Carolene Products–a belief that judicial review exists to make the will of the people the law of the land, to be limited only by the most expansive possible reading of the First and Fourteenth Amendments. Third, I’d pick William O. Douglas, because the Court could use a libertarian free spirit in an age when the government might try to squat on the human genome.