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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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“We are in the classic fog of war,” says Stephen Cohen.

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.

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