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Following Souter | The Nation

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Following Souter

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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.

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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

Dahlia Lithwick

(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.

Tom Geoghegan

(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.

Secretly, in the Oval Office, the president should make each nominee take a blood oath to reverse San Antonio School District v. Rodriguez and promise to rule that under the Equal Protection Clause every state should provide equal funding for children in public schools. What better way to start than to end the decision that ended the era of the Warren Court?

I would also make each nominee promise to write opinions no longer than those of Warren, Black and Douglas--let's go back to opinions of five pages instead of fifty. Of course, if Obama picks these three Dead White Males, there is no need for them to be dead or white or male. They would tell us that if they could.

Ian Haney Lopez

(John H. Boalt Professor of Law, University of California, Berkeley): Many scoff at the clamor for President Obama to nominate a woman to the Supreme Court or a minority or someone from a non-elite background. They dismiss in particular the enthusiasm of ostensible identity commissars who seem to support Judge Sonia Sotomayor, the daughter of working-class Puerto Ricans, as the triple threat of identity candidates.

Yet identity does matter--if indirectly. Yes, the judicial apotheosis of someone affiliated with disfavored groups would help repudiate negative stereotypes (it turns out, Latinas can do more than clean houses). True, such ascension would add to the law's legitimacy (further burnishing the belief in the Americano Dream). All fair enough. But at stake is a seat on the Supreme Court; far and away the most important criterion for selecting among various technically superb candidates must be intellectual and moral vision.

Which is the key reason identity matters. The central point is not to provide diverse role models, and it's certainly not to maximize differences of every stripe. The essential thrust of identity politics is to accord special consideration to race, gender and class (plus sexual orientation and disability)--because these constitute core, persistent, unjust hierarchies. Biography is not intellectual destiny; group membership is not epistemological fate. Nevertheless, ties to the central marginalized identities in American life surely encourage sustained engagement with inequality. Judge Sotomayor deserves our support not because of who she is but because of what she thinks--especially about the most injurious forms of structural injustice in the United States: race, gender and class.

David Cole

(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.

Lani Guinier

(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.

Jamie Raskin

(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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