Following Souter | The Nation


Following Souter

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David Cole

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Tune in all day Thursday to watch Elizabeth Warren, Bernie Sanders, Sherrod Brown and others at the New Populism Conference.

The third in a series of debates between The Nation and The National Review, moderated by Roll Call.

(Georgetown University Law Center professor): My first choice would be Calvin Trillin, who would bring to the Court a much-needed sense of Poetic Justice. He has the experience, judgment and demeanor to find new rhymes for Scalia, Thomas, Roberts and Alito, with whom he could be expected to dissent reliably, succinctly and with panache. And given how little The Nation pays him, he might jump at the job. As far as I know, Trillin lacks a law degree, and strict constructionists might find this disqualifying. But he does tell a great crime story. 

Assumin' Trillin is not willin', former dean of Yale Law School and Obama's nominee for legal adviser to the State Department, Harold Koh, would be my choice. A brilliant lawyer and scholar with experience in the executive branch, Koh is carefully attuned both to the challenges of balancing national security and civil liberties, and to the importance of acknowledging that in an increasingly globalized world, we must be cognizant of how our laws and actions interact with those of the rest of the world.

Garrett Epps

(law professor, University of Baltimore): The Rehnquist Court was the most Western Court we've ever had; for America's Native people, that was not a good thing. The unthinking background of many older white Westerners includes a helping of contempt for their Indian neighbors, and the Rehnquist years completed the transition of the Court from a protector of Native people to an all-but-avowed enemy of their rights. In Lyng v. Northwest Indian Cemetery Protective Association, for example, Arizona rancher's daughter Sandra Day O'Connor held that the US government could proceed with a logging road that the government's own study showed would destroy the traditional religion of Native people nearby. Rehnquist led a decades-long, largely successful crusade to strip tribal governments of any jurisdiction over white people--even those living on reservation land. Obama has an appointee at hand who could begin to mend this sorry record: John Echohawk, a legendary lawyer who has run the Native American Rights Fund in Boulder, Colorado, for more than thirty years. Echohawk is a 64-year-old Pawnee and was the first Native graduate of the University of New Mexico Law School. NARF has represented tribal governments in their ongoing fight to reclaim shreds of sovereignty from federal and state governments. Echohawk was a member of Obama's transition team at the Interior Department. The appointment of Echohawk would begin, after 230 years, to bring balance to the Court.

Linda Hirshman

(lawyer and author of Get to Work: A Manifesto for Women of the World): Sonia Sotomayor, Elena Kagan, yawn. A sitting judge with uninteresting decisions to her credit and a dean so bland she got along at Harvard Law School. The Democrats control Congress and the presidency for the first time since the 1970s. This is the moment to appoint big, deep thinkers who will lay the groundwork for a true liberal jurisprudence. Obama's inaugural address asked: are Americans prepared to return to their roots as sturdy citizens of a democratic republic? The Court has a crucial role to play in shaping the Constitution to that end.

In this core task, one candidate stands clearly above the rest: Ronald Dworkin, Queens Counsel and Fellow of the British Academy; professor of jurisprudence at University College, London, and New York University School of Law; and former professor of jurisprudence at Oxford University. He is the leading expositor of reading the Constitution to ensure the self-determination of autonomous individuals and to hold citizens accountable for their moral actions. On my litmus test--why does the Constitution protect abortion?--he offers an explanation so superior it boggles the mind that we're still debating. As citizens, women have a right to personal physical integrity, Dworkin brilliantly sees, "crucial to the development of personality and sense of moral responsibility."

Old white man, you say? At 77 he is so vibrant he just swept the floor with the "minimalism" so trendy among the Cass Sunstein set, in The New York Review of Books. Five years of Ronald Dworkin would be worth fifty from anyone else. Think of the short tenure of Robert Jackson. But if you really want a woman, let's have someone who's cracked the code about how the law acts on women, not just a physical woman. That's easy, too: Catharine MacKinnon.

Herman Schwartz

(law professor at the American University): I would be happy with any of several candidates, including Stanford law professor Kathleen Sullivan, Pamela Karlan and Sonia Sotomayor. I would prefer, however, that we not have another appellate judge on the Supreme Court. Appellate judges, on the appeals courts and the Supreme Court, do not deal with people, only with paper and lawyers making arguments. They lead isolated, privileged lives and rarely encounter ordinary people and their problems. For some of the same reasons I hesitate to suggest academics, although because of their continual interaction with a wide variety of students from many backgrounds, their isolation from ordinary life is less.

Nevertheless, my overall preference is for Governor Jennifer Granholm of Michigan. She is an honors graduate of both University of California, Berkeley, and Harvard Law School, which means that she probably has the intellectual capacity to serve, obviously an essential qualification. She has been a federal prosecutor, Wayne County corporation counsel and Michigan's first female attorney general. Equally important, as governor she has been forced to deal with the problems of ordinary people in difficult times. That kind of broad experience is essential to service on a court whose decisions affect so much of our lives.

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