Following Souter | The Nation


Following Souter

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Jamie Raskin

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(law professor, American University): Stanford Law professor Pamela Karlan would be the runaway knockout choice. As a justice on the Court, she would have the same kind of electrifying and transformative effect on American justice as President Obama has had on American politics.

What makes this constitutional law professor perfect for the job is that her core specialty is the law governing the political process and elections, which has been a field of broken dreams for more than a decade on this contemptuous, democracy-trampling Supreme Court. From Bush v. Gore to the Shaw v. Reno line of cases striking down majority African-American and Hispanic Congressional districts to the Voting Rights Act, campaign finance and ballot access cases, the battered liberal wing of the Court has lacked a powerful visionary champion of democratic values and practices.

A dazzling elections and voting rights attorney who has worked pro bono for the NAACP Legal Defense Fund, Karlan would bring brilliant passion to the project of seeing that all votes count and that the popular will not be thwarted by schemes, brutish or subtle, to suppress and nullify participation.

Co-author of a leading casebook on the law of democracy, a gifted scholar with a common touch, Karlan would quickly reclaim the mantle of constitutional populism from its phony friends on the right, who pose as friends of the common man but show contempt for representative institutions and the legislative process at every turn and even shut down vote-counting when it seems convenient.

Karlan has a golden pen, a penchant for lucid analysis and cogent quip, and a far greater sense of the meaning of constitutional rights for people without power and wealth than anyone else in the running. As a former law clerk to Justice Harry Blackmun and the founding director of Stanford's Supreme Court litigation clinic, she's no stranger to the High Court and would teach Justice Scalia some lessons about logical rigor and legal reasoning in the cause of freedom. But as a leading legal academic and practitioner whose passion is justice, not power, she would profoundly change the chemistry of this out-of-touch and arrogant bench (remember Lilly Ledbetter). President Obama, who taught constitutional law and election law, can surely recognize a kindred spirit. "Justice Karlan": try it on; the title fits.

Kenji Yoshino

(Chief Justice Earl Warren Professor of Constitutional Law, NYU School of Law): Academics like to break new ground, so I am abashed to admit that my pick for Justice Souter's replacement is the apparent front-runner, Judge Sonia Sotomayor of the Second Circuit of the US Court of Appeals. My remaining claim to originality is that my choice is not dictated by the conventional reasons adduced in her favor, weighty as those reasons are. I support Judge Sotomayor because she powerfully embodies the rule of law at a time in our nation's history when faith in law's empire needs redemption.

Given that Judge Sotomayor has been touted for some time as a potential nominee to the High Court, the paucity of discussion about her written opinions is surprising. When these opinions are reviewed, one quality that emerges is her profound respect for the divide between law and politics. Perhaps in part because of her experience as a district court judge before her elevation to the appellate bench, Judge Sotomayor's appellate opinions are unusually alert to governing precedents emanating from the circuit or the Supreme Court. She is a judge's judge, who has something of Justice Souter's romance with the law. For this reason alone, she would be a great successor to a great justice.

Victor Navasky

(publisher emeritus, The Nation): If Herman Schwartz were a Hispanic woman, even though he is in his late 70s, he would be my pick for the Court. He is a wise and nuanced student of the Court, who embodies the learning and civil liberties and human rights values we hope will imbue Obama's first pick.

But because I strongly believe the Court suffers from a lack of gender and other sorts of diversity--and because I think people involved in the judicial selection process, even though they know it is not a requirement that the candidate be a lawyer, will not take seriously my other first choice, Toni Morrison (who has the wisdom, values and capacity for creative solutions that a great justice ought to possess)--I would not be at all unhappy if the nomination went to: Diane Wood, who clerked for the late justice Harry Blackmun and apparently much impressed Obama when they were fellow faculty members at the University of Chicago law school; Kathleen Sullivan, the impressive First Amendment scholar and former dean of Stanford Law School who carries on a lively legal practice; or that other former Blackmun clerk (and an award-winning Stanford teacher), Pamela Karlan, whose constitutional law casebook I am told is superb, as are the pieces she has done for this and other nonlegal (as well as legal) periodicals.

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