Following Souter
Lani Guinier
About the Author
The Nation
(Bennett Boskey Professor, Harvard Law School): At this historic moment, President Obama should contemplate appointing a person with the capacity and inclination to become a powerful voice of democratic dissent. The biggest challenge facing any Obama nominee is that Republicans, although now out of power in Congress and the White House, still enjoy a supermajority on the Supreme Court. Because Obama's nominee will likely reflect her judicial philosophy primarily in dissent, I propose that he consider appointing someone whose background includes dealing with a constituency of accountability. Such a person, by virtue of experience and practice, could use her position to speak in a voice that is easy to understand and with a tone of urgency that is hard to resist.
While local activists do not depend on members of the Court to authorize their protests, the passionate voice of a dissenting justice can encourage, frame and help legitimate an alternative narrative of justice. Justices who dissent from the bench can engage ordinary citizens (not just lawyers and judges) in a conversation about significant yet competing democratic values.
This is not a call for judicial activism, because as a dissenter, the justice is not wielding the coercive power of the state. Should dissenters on the left or right succeed in this way, it is because We the People become the real democratic activists. And that is precisely what happened, for example, after Justice Ginsburg, a leading advocate for women's equality before becoming a judge, spoke out in her oral dissent in the Lilly Ledbetter pay equity case. Although she did not convince her conservative male colleagues that the concept of equal pay for equal work was a fundamental American value, she had a larger audience in mind. She spoke colloquially and frankly to ordinary women, who know how hard it is to raise questions when, like Lilly Ledbetter, you are the first woman in an all-male workforce. Members of Congress as well as national and local activists responded, pushing back against the cramped interpretation of the Court majority. Ultimately, Ginsburg's dissent was vindicated--not because her colleagues changed their minds but because a grassroots coalition mobilized to support the Lilly Ledbetter Fair Pay Act, the first major piece of legislation that President Obama signed.
Kevin Johnson
(dean, University of California, Davis, School of Law): After hours of mental gymnastics, I simply could not narrow the field to a single "ideal" Supreme Court nominee. But I offer two potential nominees who would make us all proud and reflect the life experiences, as well as the commitment to the rule of law, of President Obama. Both are highly intelligent and well qualified. Both have varied legal careers that offer the breadth of real-life knowledge that we need in a Supreme Court justice. Both made the most of humble beginnings. Both would add valuable perspective and insight to the Court.
A product of the Bronx housing projects, Judge Sonia Sotomayor became the first Puerto Rican woman to serve as a US Circuit Court judge. A graduate of Princeton and Yale Law School, Judge Sotomayor began her career as an assistant district attorney and later joined a small civil law firm in New York City. She served as a federal district court judge before being elevated to the US Court of Appeals for the Second Circuit. Judge Sotomayor would be the first Latina (or Latino, for that matter) on the Supreme Court. Besides representing the inclusion and full membership of Latinos in American society, her appointment would add a perspective on issues such as language regulation, immigration (including state and local efforts to regulate immigration) and education, different from that provided by any previous justice. An experienced federal judge, Judge Sotomayor has the scholarly credentials and professional experience to make an immediate contribution to the Court.
Massachusetts Governor Deval Patrick was born and raised on the South Side of Chicago. The first in his family to attend college, Patrick graduated from Harvard College and Harvard Law School. (Full disclosure: I knew a young Patrick, who was in the class ahead of me, in law school.) Patrick served as a law clerk to a US Circuit Judge Stephen Reinhardt before joining the NAACP Legal Defense and Education Fund. He next worked in private practice until confirmed as the assistant attorney general for civil rights in the Justice Department. Patrick later served as general counsel of Texaco and Coca-Cola before being elected governor. For the past twenty years, the Patrick family has lived in Milton, Massachusetts, in a house that was on Deval's paper route as a teen. A highly accomplished and intelligent lawyer known for his coalition-building skills, Patrick's appointment to the Court would represent the first time that two African-American justices served at the same time and would do much to salve the wounds left by the appointment of conservative justice Clarence Thomas to replace civil rights legend Thurgood Marshall.
Critics may point out that Judge Sotomayor and Governor Patrick are products of the Ivy League. Although greater diversity in educational pedigrees (perhaps even a public law school education!) would be desirable on the Supreme Court, two excellent candidates should not be disqualified because they overcame great socioeconomic and other disadvantage to excel in private universities and obtain the credentials that made their rise to national prominence possible. Both simply have too much to offer the Supreme Court--and the nation.
Nan Aron
(Alliance for Justice): Some justices on the Supreme Court are aggressively and systematically undermining the Constitution to pursue their own political agenda. To stand up to this onslaught, President Obama must nominate someone who will be a strong leader, an intellectual powerhouse who can go toe-to-toe with the ultraconservatives to uphold the Constitution and the law to provide equal justice and basic freedoms for all, not just a few.
That's in contrast to the judges--enthusiastically supported for eight years by most Republican senators--who have applied a partisan game plan that says there should be one set of rules in America for those at the top and another for everyone else. The result? A ruling that a corporation could cheat a woman who worked there for nineteen years out of thousands of dollars in pay. And one that took away the right of a man injured because by a defective heart device to hold the manufacturer accountable. And another that cut by 80 percent what a jury awarded the victims of an Exxon oil spill.
All Senate Republicans signed a letter threatening to filibuster any nominee not close enough to their partisan agenda. Given that inevitability, President Obama should not settle for anything less than the strongest possible voice for equal justice for all. The Republican point man, Senator Jeff Sessions, said flatly in 2003 that filibustering judicial nominees is something that "should not occur." Progressives must encourage a strong nomination and then help stop Republicans from blocking a majority vote.
