Kimberle Crenshaw for the Supreme Court

It's the middle of the night after a very long day, so this will be a short entry. Exhaustion could keep me from weighing in briefly at this critical moment.

With tonight's announcement that Justice Souter is retiring from the Supreme Court, it has suddenly become clear what the enduring act of President's Obama's next 100 days will be: the nomination of his first Supreme Court justice.

Though nominated by a Republican, Souter is a reliable liberal justice, so there is little reason to believe that this nomination will alter the balance of power on the court. But President Obama can still make this nomination a game changer. He can tap Kimberle Crenshaw for the job.

Kimberle Crenshaw is a field-defining critical race scholar who earned a law degree from Harvard. Her writings on race, gender, and the power of law dynamically altered the academic discourse in law schools throughout the world. Her work has been central to political movements here in the United States and to the development of emerging democracies globally. She is a prolific legal scholar and a respected public intellectual.

There is no one on the current court with the expansive, progressive, clarity of legal reasoning that Crenshaw has demonstrated for more than twenty years. As a justice Crenshaw would have the potential to substantially revise our understanding of American constitutional law by articulating elements of the American experience that have never before been integrated into our constitutional interpretation. She would open up the unique possibility of black feminist scholarship and practice challenging American jurisprudence from the inside out.

I recognize that Crenshaw is an unlikely choice. But on Wednesday night during his "100 Days" press conference President Obama smiled as he remembered that he once trailed by 30 points in Iowa. He encouraged us to think of his own election as an example of our nation's willingness to embrace surprising new leaders at this moment of change and opportunity. I take him at his word. Time for Kimberle Crenshaw on the Supreme Court. Change indeed!

Comments (63)

1. Kimberle would be a great addition, and a step towards exhibiting a race lens that we know Pres. Obama has, but he's been clearly hesitant to use.

   She's fantastic...lets push for this.

   Posted by ludovicspeaks at 05/01/2009 @ 12:11am

2. I understand that idea here, but more realistically think and hope for Kathleen Sullivan.

   Posted by djblinka at 05/01/2009 @ 01:08am

3. Whoever Obama nominates will be approved and will be one day regretted as part of the dismantling of the constitution.

   Posted by antisocialist at 05/01/2009 @ 01:25am

4. KC would be magnificent.

   But has Obama ever shown any daring? Apart from declaring his own candidacy & recently assenting to buy the most disobedient breed of engaging dog known to the civilized world ...

   Posted by sloper at 05/01/2009 @ 03:09am

5. The real pick will fall somewhere between antisoc and sloper, leaning more towards sloper, but of course as per his SOP, he'll bitch and moan about the pick...since unless it's Noam Chomsky or Ralph Nader, nobody will be good enough.

   And naturally, Larry will say they are a "Marxist baby-killing anti-Christian who wants the terrorists to win."

   To the rest of us saner folks, the pick will be good and a HELLUVA lot better than who McCain would have picked...

   which is the real point.

   Posted by Mask at 05/01/2009 @ 08:09am

6. Posted by Mask at 05/01/2009 @ 08:09am | ignore this person | warn this person

   yup....

   yup.

   i'll look into ms. crenshaw later. so far the only problem i have is the way her first name is spelled.

   i hate cutesy alternative name spellings...

   Posted by ibbleblibble at 05/01/2009 @ 08:43am

7. Posted by ibbleblibble at 05/01/2009 @ 08:43am

   Like "Jorja" Fox ("Sara Sidle" on CSI)....it's "Georgia" dammit!

   LOL

   Posted by Mask at 05/01/2009 @ 09:29am

8. And naturally, Larry will say they are a "Marxist baby-killing anti-Christian who wants the terrorists to win."

   Posted by Mask at 05/01/2009 @ 08:09am

   More likely he'll just say that they're dismantling the Constitution if their interpretation of law and precedent differs at all from his own. Which, come to think of it, is just about as ridiculous.

   Posted by richcarl at 05/01/2009 @ 10:03am

9. Like "Jorja" Fox ("Sara Sidle" on CSI)....it's "Georgia" dammit!

   LOL

   Posted by Mask at 05/01/2009 @ 09:29am | ignore this person | warn this person

   "jorja"?

   oh my...

   Posted by ibbleblibble at 05/01/2009 @ 10:18am

10. Posted by richcarl at 05/01/2009 @ 10:03am

    Of course. Except they'd have to make exceptions for empowering the President with the right to declare wars and torture people the Executive wanted to since THAT kind of "liberal interpretation" is okey-dokey in Larry's book.

    Posted by Mask at 05/01/2009 @ 10:53am

11. ludovicspeaks says:

    "Kimberle would be a great addition, and a step towards exhibiting a race lens that we know Pres. Obama has, but he's been clearly hesitant to use. ..."

    BUT...

    A great man, Martin Luther King, said this:

    =============

    August 28, 1963. Washington, D.C.

    "......I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character....."

    =============

    SO....

    It looks like the Rev. King's dream is still not realized, because at least one blogger on The Nation, ludovicspeaks, thinks that someone should be on the Supreme Court that "exhibits a race lens".

    Posted by sjchermak at 05/01/2009 @ 10:57am

12. Why is the gender of the nominee the first determining factor?

    Posted by syfriendly at 05/01/2009 @ 11:02am

13. Personally, given that Obama apparently is claiming that he wants someone with an exposure to the lives of "normal folks", I'd suggest the unthinkable and radical for Washington, DC - and not care about whether or not the nominee is a woman, but whether or not the nominee was a public school graduate.

    The entire administration is populated with Harvard and Yale graduates. A narrower slice of humanity could not be found. Let's do the unthinkable - nominate a figure who didn't go to an elitist private school for a law degree and who has served outside of Washington DC for most of his/her career.

    Posted by syfriendly at 05/01/2009 @ 11:05am

14. Why is the gender of the nominee the first determining factor? Posted by syfriendly at 05/01/2009 @ 11:02am | ignore this person | warn this person

    because our state of the country is almost exclusively determined by old white men. that's why.

    take a look at the group photo of the court, or any other court for that matter.

    Posted by emile duBois at 05/01/2009 @ 11:06am

15. Posted by sjchermak at 05/01/2009 @ 10:57am

    Hey, SJCHER, off-topic, but heard a commentator on MSNBC say that it's likely the Republicans wouldn't make a come back for "two or THREE election cycles"....

    agree?

    Posted by Mask at 05/01/2009 @ 11:12am

16. Posted by emile duBois at 05/01/2009 @ 11:06am | ignore this person | warn this person

    And as we saw in the case of Condoleeza Rice, Karen Hughes, Sarah Palin, and too many other women to count, a person's gender has no weight whatsoever in determining whether or not a person is capable morally and otherwise of being a good leader. There are probably more important things to think about in nominating a supreme court justice but the entirety of progressive media is already lighting up with "Obama Must Pick a Woman". This is the fastest way to degenerate what is a very important debate into the worst depths of the culture wars.

    What's next, gay marriage and abortion as the only two issues to discuss for the candidate's background?

    And if we are to look to the personal aspects of the candidate as the most important aspects of the candidate - as if a woman being placed in the supreme court tomorrow means anything real at all for the vast majority of the women in the country, whose lives will change precisely Not At All as a result - perhaps there are other personal aspects of the candidate that could be focused on in an attempt to "freshen up" the population of high-ranking figures in DC?

    How about a public school graduate placed by an administration that has otherwise exclusively required a Harvard/Yale/Stanford degree for any figure considered for high placement whatsoever?

    Come on, send a message! The American Dream is real. Tell us that our daddy didn't have to go to Harvard, Yale, or Stanford for you to have a chance to go high places in the US.

    Posted by syfriendly at 05/01/2009 @ 11:13am

17. what I said was gender matters. period. perhaps you wish it were not so, but it is.

    competence and high moral character is likely evenly distributed among the sexes and races.

    Posted by emile duBois at 05/01/2009 @ 11:19am

18. Mask,

    I have to give you credit, you really ask some stupid questions, and each new one tops the last!

    You expect me to agree with you on that?

    My answer is that I hope the MSNBC commentator is wrong.

    Knowing you, it is a trick question because then you will disclose that the "MSNBC commentator" was a guest Republican or maybe the only Conservative on that network.

    I do not watch MSNBC so I do not know the lineup of their staff.

    But that is probably where you are headed with this, because you otherwise would not just ask me a question out of the blue that you know (before you even ask) that I am going to disagree with.

    Posted by sjchermak at 05/01/2009 @ 11:21am

19. " ... Kimberle Crenshaw is a field-defining critical race scholar who earned a law degree from Harvard. Her writings on race, gender, and the power of law dynamically altered the academic discourse in law schools throughout the world. Her work has been central to political movements here in the United States and to the development of emerging democracies globally. She is a prolific legal scholar and a respected public intellectual ..."

    posted by MELISSA HARRIS-LACEWELL on 04/30/2009 @ 11:47pm

    Race and gender are very important aspects of our cultural life, however, the biggest political issues we have seen emerging in the recent decades are:

    1) the explosive rise of grotesque wealth inequality

    2) the demise of worker security through sustained attacks on unions, job security, offshoring of labor, and reduction of health care

    3) unnecessary imperialist foreign wars

    4) the basic rights of figures detained in intelligence and military operations

    5) the rights of the public to be free of unwarranted surveillance

    6) the continued concentration of mass media into the control of fewer and fewer hands

    7) the impact of lobbies on the political operations in the nations capitol and statehouses

    8) the rise of corporate personhood and resulting overbearing power of large corporations legally, economically, and culturally

    Perhaps these issues need to be in the forefront of the debate over which candidate should take Justice Souter's place, rather than simply gender and race issues?

    Posted by syfriendly at 05/01/2009 @ 11:23am

20. posted by MELISSA HARRIS-LACEWELL on 04/30/2009 @ 11:47pm

    I also challenge you to defend the idea that Yet Another Harvard Graduate should be sent to high places in DC.

    Isn't it time for a change away from Harvard University? This one school, which is exclusively a nexus of power and wealth, part of the plutocracy's bunker in which it guards its power and wealth, has an amazing over-representation in the halls of power in Washington, DC.

    Can't we think outside of the box a bit? Couldn't real change in DC require getting people into the halls of power there who have been public school graduates? Why, in this administration, even the Secretary of Education - the leader and guardian of the nation's public school system - is a Harvard blueblood. Perhaps we'd get more change on race, gender, and economic issues if we got people into power who have not been, largely, sheltered from these issues there entire lives.

    Posted by syfriendly at 05/01/2009 @ 11:26am

21. I don't care what the race, gender, or educational history of the next appointee is. It does not matter, if they are not qualified to interpret the constitution or do not uphold the values of the majority of Americans who elected Barack Obama. I personally would want the most qualified, and hope that gender or race is not factored into the equation, as those variables only serve to degrade the candidtate. Looks should not be of greater importance than qualifications.

    Posted by Extraneous at 05/01/2009 @ 11:27am

22. Looks should not be of greater importance than qualifications. Posted by Extraneous at 05/01/2009 @ 11:27am | ignore this person | warn this person

    who said anything about looks? gender is an issue, race is an issue.

    on the other hand, we elected this pres, so we need to let him do his thing. we can fire him in a few years.

    Posted by emile duBois at 05/01/2009 @ 11:37am

23. Nominate FRAU BLUCHER!! (or Cloris Leachmann, who we can find first)

    Posted by PRESTERJOHNofASIA at 05/01/2009 @ 11:50am

24. Posted by sjchermak at 05/01/2009 @ 11:21am

    No, actually the trick was....

    it was Rush Limbaugh (Morning Update yesterday).

    But good eye!

    Posted by Mask at 05/01/2009 @ 12:01pm

25. Posted by PRESTERJOHNofASIA at 05/01/2009 @ 11:50am

    Or Nurse Diesel!

    Posted by Mask at 05/01/2009 @ 12:03pm

26. because our state of the country is almost exclusively determined by old white men. that's why. take a look at the group photo of the court, or any other court for that matter. Posted by emile duBois at 05/01/2009 @ 11:06am | ignore this person | warn this person

    -----------

    But let's not forget: It was a woman (O'Connor) who cast the deciding vote in the coup that gave us the tragic presidency of George W Bush. Gender does not guarantee anything on that bench, or in politics at all for that matter.

    Posted by Citizen54 at 05/01/2009 @ 12:09pm

27. No offense, Ms. Melissa, but this woman has no judicial experience. I'd like to see a woman (white or of color) replace Souter, but I think those who are already judges are more qualified. I also think bloggers have a point in being sick of Harvard/Yale/Stanford nominees. I went to Purdue for a Ph.D., which I guess qualifies me for nothing whatever. Souter himself, I think, has done a great job, although I suspect HW Bush doesn't think so.

    Posted by mimsky at 05/01/2009 @ 12:19pm

28. Looks should not be of greater importance than qualifications. Posted by Extraneous at 05/01/2009 @ 11:27am | ignore this person | warn this person

    who said anything about looks? gender is an issue, race is an issue.

    Posted by emile duBois at 05/01/2009 @ 11:37am

    Ummm, you? Unless you don't think gender and race comprise aspects of how one looks?

    Posted by Extraneous at 05/01/2009 @ 12:23pm

29. Harvard ALWAYS produces sane, anapoplectic, reasoned, unbiased minds. That's why Alan Dershowitz should be nominated. Not.

    Posted by mystic at 05/01/2009 @ 12:38pm

30. Posted by mystic at 05/01/2009 @ 12:38pm

    Sorry and this is from a person who thinks Mossad agents are killing US soldiers in Iraq?!??!??

    Posted by Mask at 05/01/2009 @ 12:41pm

31. Ummm, you? Unless you don't think gender and race comprise aspects of how one looks? Posted by Extraneous at 05/01/2009 @ 12:23pm | ignore this person | warn this person

    that is a separate discussion.

    Posted by emile duBois at 05/01/2009 @ 1:02pm

32. Supreme Court Justices Name Class year Notability Reference Harry Blackmun (1908-1999) College 1929; Law 1932 Justice of the Supreme Court of the United States [171] Louis Brandeis (1856-1941) Law 1877 Justice of the Supreme Court of the United States [172] William J. Brennan (1906-1997) Law 1931 Justice of the Supreme Court of the United States [173] Stephen Breyer (born 1938) Law 1964 Justice of the Supreme Court of the United States [174] Harold Burton (1888-1964) Law 1912 Justice of the Supreme Court of the United States [175] Benjamin Curtis (1809-1874) College 1829; Law 1832 Justice of the Supreme Court of the United States [176] William Cushing (1732-1810) College 1751 Justice of the Supreme Court of the United States [177] Felix Frankfurter (1882-1965) Law 1906 Justice of the Supreme Court of the United States [178] Horace Gray (1828-1902) College 1845; Law 1849 Justice of the Supreme Court of the United States [179] Oliver Wendell Holmes, Jr. (1841-1935) College 1861; Law 1866 Justice of the Supreme Court of the United States [180] Anthony Kennedy (born 1936) Law 1961 Justice of the Supreme Court of the United States [181] William Henry Moody (1853-1917) College 1876 Justice of the Supreme Court of the United States [182] Lewis Powell (1907-1998) Law 1932 Justice of the Supreme Court of the United States [183] William Rehnquist (1924-2005) A.M. 1950 Chief Justice of the United States [184] John Roberts (born 1955) College 1976; Law 1979 Chief Justice of the United States [185] Edward Sanford (1865-1930) College 1885; A.M. 1889; Law 1889 Justice of the Supreme Court of the United States [186] Antonin Scalia (born 1936) Law 1960 Justice of the Supreme Court of the United States [187] David Souter (born 1939) College 1961; Law 1966 Justice of the Supreme Court of

    Posted by emile duBois at 05/01/2009 @ 1:09pm

33. Harvard grads.( and for me the rarely achieved double whammy)

    Posted by emile duBois at 05/01/2009 @ 1:11pm

34. Posted by emile duBois at 05/01/2009 @ 1:09pm | ignore this person | warn this person

    Based on that information I'd say its much more important that any Obama-nominated supreme court figure NOT be a Harvard grad, if we are trying to diversify the court. That list is essentially proof that the basic legal education informing supreme court justices on average is hugely over-impacted by one law school. That's bad. You could can put 10 Harvard-educated women of 10 different races on the bench and you'll have precisely zero intellectual diversity.

    Posted by syfriendly at 05/01/2009 @ 1:59pm

35. hello

    upreme Court Justices Name Class year Notability Reference Harry Blackmun (1908-1999) College 1929; Law 1932 Justice of the Supreme Court of the United States [171] Louis Brandeis (1856-1941) Law 1877 Justice of the Supreme Court of the United States [172] William J. Brennan (1906-1997) Law 1931 Justice of the Supreme Court of the United States [173] Stephen Breyer (born 1938) Law 1964 Justice of the Supreme Court of the United States [174] Harold Burton (1888-1964) Law 1912 Justice of the Supreme Court of the United States [175] Benjamin Curtis (1809-1874) College 1829; Law 1832 Justice of the Supreme Court of the United States [176] William Cushing (1732-1810) College 1751 Justice of the Supreme Court of the United States [177] Felix Frankfurter (1882-1965) Law 1906 Justice of the Supreme Court of the United States [178] Horace Gray (1828-1902) College 1845; Law 1849 Justice of the Supreme Court of the United States [179] Oliver Wendell Holmes, Jr. (1841-1935) College 1861; Law 1866 Justice of the Supreme Court of the United States [180] Anthony Kennedy (born 1936) Law 1961 Justice of the Supreme Court of the United States [181] William Henry Moody (1853-1917) College 1876 Justice of the Supreme Court of the United States [182] Lewis Powell (1907-1998) Law 1932 Justice of the Supreme Court of the United States [183] William Rehnquist (1924-2005) A.M. 1950 Chief Justice of the United States [184]

    <a href="http://www.drugstrategies.org/Treatment/North-Carolina">North Carolina Drug Treatment Centers</a>-North Carolina Drug Treatment Centers

    Posted by hunman007 at 05/01/2009 @ 2:03pm

36. Of course. Except they'd have to make exceptions for empowering the President with the right to declare wars and torture people the Executive wanted to since THAT kind of "liberal interpretation" is okey-dokey in Larry's book.

    Posted by Mask at 05/01/2009 @ 10:53am

    When Bush nominated Roberts and Alito, I said that a president should have whomever they nominate approved by the Senate as long as they meet the judicial temperment requirement (which in itself isn't actually constitutionally required, but is a sound principle).

    Thus, I don't see a reason to oppose any qualified candidate that Obama submits even though I personally would not likely agree with their political philosophy or their view of interpretation of the Constitution.

    I'm saying this so you can have me on record now. before any nominee actually is announced.

    I try to be consistent in these matters, just as I am on supporting any president on committing troops to harms way.

    Posted by antisocialist at 05/01/2009 @ 2:08pm

37. Of course. Except they'd have to make exceptions for empowering the President with the right to declare wars and torture people the Executive wanted to since THAT kind of "liberal interpretation" is okey-dokey in Larry's book.

    Posted by Mask at 05/01/2009 @ 10:53am

    Mask, Mask, Mask, still operating by distortion.

    Semantics matter.

    I've never said that the president has the right to DECLARE war. I've said that president's have the authority to commit troops to military action without a formal declaration of war. That has been held up by SCOTUS on numerous occasions. There cannot be a limit placed upon the authority of the executive to defend the nation, unless Congress formally states so or cuts off funding.

    2nd-I did not say that presidents have the right to torture. Although, I think that as was mentioned on Democracy Now this morning, the US codified a reservation to the Convention Against Torture.

    From Democracy Now Transcript May 1, 2009

    "Alfred McCoy. He's a professor of history at the University of Wisconsin-Madison, author of several books, including A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror.

    In 1994, for example, the US ratified the Convention Against Torture. There was no investigation of past practice. So, when that ratification went through, it was done in a way that in fact legalized psychological torture, because when we ratified that convention, we also, if you will, passed a reservation, which then got codified into US federal law, Section 2340 of the US Federal Code. In that code, we said that psychological torture, which is actually the main form of torture practiced by the United States since the 1950s, is basically not torture"

    Posted by antisocialist at 05/01/2009 @ 2:38pm

38. Some notes on Prof. Crenshaw's "Dr. King's True Legacy: A Lesson for Progressives in the Age of Obama," posted 1/27/09 at http://www.huffingtonpost.com/ kimberle-crenshaw/dr-kings-true-legacy-a-le_b_161438.html

    Part 1 of 2

    Prof. Crenshaw "Peace" activism does not impress, but then I'm not a fan of King's or Gandhi's pacifism, either. The fight against injustice, exploitation and oppression may not always be something that can be accomplished non-violently, nor can we expect World Peace when there are tyrants in the world or, more importantly, nations with deeply competing interests. I'm not saying that Obama will choose anyone I think is better than Prof. Crenshaw, but I wouldn't dance in the streets over her if I were one of the liberal-left folks on here, either. "The most important inheritance we can receive from King is to draw strength from perhaps his most courageous act -- speaking out against a president who had championed Civil Rights at home and holding him morally accountable for his militaristic policies abroad. Simply put, President Lyndon Johnson was more progressive on Civil Rights than Lincoln (who wanted to send African Americans "back to Africa"), Roosevelt, and yes, sorry to say, even John Kennedy. While far from being the first openly black president, he was certainly the first Civil Rights president. As a result, he inspired tremendous loyalty from the civil rights constituency. Yet despite this reality, and against the temptation to turn a blind eye to the misdoings of influential allies, King did what his pragmatist colleagues found virtually unthinkable. He openly criticized Johnson's Vietnam war."

    --This is very good.

    Posted by cka2nd at 05/01/2009 @ 4:28pm

39. Some notes on Prof. Crenshaw's "Dr. King's True Legacy: A Lesson for Progressives in the Age of Obama," posted 1/27/09 at http://www.huffingtonpost.com/ kimberle-crenshaw/dr-kings-true-legacy-a-le_b_161438.html

    Part 2 of 2

    "Certainly, the man who eulogized four little girls in Birmingham would teach us to repudiate claims that the death of some children is defensible in pursuit of the security of others."

    --This is infantile morality. The murder of the four little girls was an attempt to terrorize those struggling for civil rights. The PURPOSE behind the bombing was what marked this act as immoral, not the act itself, per se. There may in fact be instances when the death of a few may be justified in order to save the many. This is routine moral calculus, whether in public policy, military policy or the insurance business. Popular culture used to include this principle – to paraphrase Mr. Spock on Star Trek, "The needs of the many outweigh the needs of the few" – but in the last decade or so, it has been crowded out by a more fearful and egocentric ethos of "NO SACRIFICE," not of anyone or anything, even if it means the death of thousands or millions.

    "…the very ways we Americans rationalize war as group punishment, frame war against "Others" as the only language that they understand, shield ourselves from their pain and despair, and export the despicable treatment of our own prisoners to our "enemies" around the world. King would want us to remember that the standard for how we treat Others will never transcend how we treat our Others here at home."

    --Good response to both the broken rules of war and a broken system of justice.

    Posted by cka2nd at 05/01/2009 @ 4:30pm

40. To both Snowball and sjchermak:

    Martin Luther King supported affirmative action.

    Posted by cka2nd at 05/01/2009 @ 4:32pm

41. ludovicspeaks, snowball666 and mimsky:

    May I suggest that you show some consistency and refer to everyone by either their first name or their last name. Referring to blacks by their first name and whites by their last name is a subtle sign of disrespect, most often seen in the sports world but not unknown here.

    Just asking for a little bit of thoughtfulness, although I'm sure I'll be flamed for this.

    Posted by cka2nd at 05/01/2009 @ 4:43pm

42. No offense, Ms. Melissa, but this woman has no judicial experience.

    Posted by mimsky at 05/01/2009 @ 12:19pm

    I wouldn't fetishize prior experience as a judge in selecting a Supreme Court justice if I were you. As is pointed out at the following, http://usgovinfo.about.com/ b/2005/10/03/non-judges-on-supreme-court-not-uncommon.htm, we've had quite a few appointees to the Supreme Court who were not judges, from across the political spectrum:

    "Franklin D. Roosevelt appointed Sen. Hugo Black (D-Alabama), Attorney General Robert Jackson and Securities and Exchange Commissioner William O. Douglas. William H. Rehnquist was Assistant Attorney General when nominated by President Nixon, who also nominated distinguished attorney Lewis F. Powell Jr."

    Posted by cka2nd at 05/01/2009 @ 4:55pm

43. Why? Wouldn't you want a judge on the most important court in the land to have been a judge before?

    <i>Posted by antisocialist at 05/01/2009 @ 2:38pm </i>

    No limit on the authority of the executive to defend the nation? Where in the Constitution is that? If you buy that, then the "declaration of war" power is meaningless.

    <i>Posted by syfriendly at 05/01/2009 @ 11:23am </i>

    The Supreme Court's function is not to resolve cultural issues; in fact, it should try to avoid doing so whenever possible.

    Posted by Thrawn at 05/01/2009 @ 5:20pm

44. Posted by antisocialist at 05/01/2009 @ 2:38pm </i>

    No limit on the authority of the executive to defend the nation? Where in the Constitution is that? If you buy that, then the "declaration of war" power is meaningless.

    Show me where the constitution imposes a limitation on the authority of the executive to defend the nation?

    Article II

    and his oath of office

    ""I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

    Note the following:

    "Nobody can foretell tonight just when the acts of the dictators will ripen into attack on this hemisphere and us. But we know enough by now to realize that it would be suicide to wait until they are in our front yard.

    When your enemy comes at you in a tank or a bombing plane, if you hold your fire until you see the whites of his eyes, you will never know what hit you. Our Bunker Hill of tomorrow may be several thousand miles from Boston.

    Anyone with an atlas, anyone with a reasonable knowledge of the sudden striking force of modern war, knows that it is stupid to wait until a probable enemy has gained a foothold from which to attack. Old-fashioned common sense calls for the use of a strategy that will prevent such an enemy from gaining a foothold in the first place."

    Great common sense on defending the nation!

    Posted by antisocialist at 05/01/2009 @ 5:45pm

45. Just what we need, a professional race-baiter.

    Posted by pyeatte at 05/01/2009 @ 7:08pm

46. <i>Show me where the constitution imposes a limitation on the authority of the executive to defend the nation?

    Posted by antisocialist at 05/01/2009 @ 5:45pm </i>

    When it comes to government, that's NEVER the standard. We don't presume that power exists unless someone proves otherwise, it's the other way around. Your argument also presupposes that the executive is given the sole authority to defend the nation at his/her discretion, and that's unambiguously NOT what the Constitution contemplates. SCOTUS, for instance, has held that executive authority doesn't generally include any kind of domestic lawmaking (see Youngstown), and they clearly don't have exclusive power in the warmaking domain (see, declaration of war by Congress).

    The oath to preserve, protect and defend the Constitution does nothing to help your argument. Unless I'm mistaken, officials in all three branches take that oath.

    Nor does the quote you've provided do anything for you. Your claim is that the executive has virtually unlimited authority to defend the country; even if preemptive war is justified, your conclusion doesn't even remotely follow from it.

    Posted by Thrawn at 05/01/2009 @ 7:19pm

47. I'll just be happy if Obama's pick fights the activist conservative wing of the court.

    Posted by erazma at 05/01/2009 @ 8:37pm

48. Fair is fair. Right-leaning moderate GHW Bush picked liberal Souter for the Court. Liberal Obama must pick a right-leaning moderate for the court. Race and sex is not important.

    Posted by twillie at 05/01/2009 @ 10:23pm

49. Oh my. . . If Kim were in the Supreme Court my life would be complete.

    There is pretty much a 0% chance of this happening, as anyone who knows her work knows she is a Critical Race Theory rockstar and her resume would terrify most white people and any conservative. However, I personally cannot think of much of anything that would make me happier--she is truly a legal genius, and incredible writer, and would offer a perspective that the Supreme Court has never come close to addressing before.

    PLEASE, President Obama?

    Posted by blapa at 05/02/2009 @ 01:22am

50. no, Mr/Ms 2nd, cka.

    you are completely wrong, and I have to call you on it.

    the murder of four children was primarily wrong because it was the murder of four children, and only secondarily wrong because it was with the intent to terrorize. not the other way around.

    that's pretty basic. once you have confused that issue, everything else you say is sophistry, and indicates that you have confused the relative importance of means and ends.

    As Galileo said, Eppur si muove. If you want to construct a moral system that excuses abominable acts under some circumstances, that's fine, but I think in the end you might as well calculate the movement of the planets with the earth at the center of the solar system. It's a whole lot more work, and it ultimately takes you to the same place. So you're better off just putting the sun in the middle, and remembering that murdering children is wrong, no matter how you choose to justify it.

    Posted by canaro71 at 05/02/2009 @ 01:30am

51. Oh, hell yeah! KC is, in a word, brilliant. What a wonderful fantasy! BO does not, however, have the gumption to offer such a nomination. But I am thrilled to see the idea in print and I thank you for making that possible.

    Posted by ajlaw at 05/02/2009 @ 10:49am

52. Not so fast:

    From attorney W.F. Twyman:

    "To satisfy my curiosity, I decided to conduct an electronic search query on Westlaw. If Critical Race Theory were truly an "exciting new legal genre," then its impact would be felt in the chambers of federal judges across the country. Would you expect a growing list of citations to Bell, Crenshaw and the newer adherents to the movement? Would you imagine that hundreds of law professors swept up in Critical Race Theory have made a difference in how real cases are decided every day?

    You would be wrong.

    Out of tens of thousands of federal cases at every level -- U.S. Supreme Court to the lowest federal district court -- only one judge has ever cited to "Critical Race Theory." And that lonely cite was in one obscure case involving a challenge to New York City's termination of fire and police employees for participating in a parade. Locur v. Giulani, 269 F. Supp. 2d 368, S.D. N.Y. (2003). For all intents and purposes, Critical Race Theory is a non-issue in the real world."

    Can we really afford to appoint someone from so far outside the mainstream of American justice?

    Posted by twillie at 05/02/2009 @ 12:15pm

53. Posted by antisocialist at 05/01/2009 @ 2:38pm

    The question becomes where is the line between psychological and physical torture? I would say water boarding is physical. I have almost drowned before. I know how painful it is. It isn't just a psychological pain.

    Posted by Cccomfo1 at 05/02/2009 @ 9:36pm

54. Fair is fair. Right-leaning moderate GHW Bush picked liberal Souter for the Court. Liberal Obama must pick a right-leaning moderate for the court. Race and sex is not important.

    Posted by twillie at 05/01/2009 @ 10:23pm

    How is that fair? Bush Jr. picked extreme right leaning people. I hope you are kidding.

    Posted by Cccomfo1 at 05/02/2009 @ 9:40pm

55. Alito and Roberts are extreme right-leaning? Really?

    Posted by Thrawn at 05/02/2009 @ 11:43pm

56. yep

    you think not?

    explain.....

    please

    Posted by b_kool_66 at 05/03/2009 @ 03:44am

57. i hate cutesy alternative name spellings...

    Posted by ibbleblibble at 05/01/2009 @ 08:43am

    In medicine, there is an axiom that states that the more bizarre the spelling of a child's first name, the greater the likelihood of Social Services involvement in the first year of life.

    It's spooky how true this is, too.

    Posted by skeletonman at 05/03/2009 @ 04:58am

58. <i>Posted by b_kool_66 at 05/03/2009 @ 03:44am</i>

    I mean, you could make that argument for Alito, but Roberts seems pretty moderate.

    Posted by Thrawn at 05/03/2009 @ 12:23pm

59. Critical Race Theory.

    NOT accepted and not influential among legal scholars. Not objective, rational, or logical. Full of anecdote and fictional stories.

    NOT a benefit for SCOTUS.

    Just more progressive dreck.

    Posted by sntauri at 05/03/2009 @ 5:46pm

60. Out of tens of thousands of federal cases at every level -- U.S. Supreme Court to the lowest federal district court -- only one judge has ever cited to "Critical Race Theory." And that lonely cite was in one obscure case involving a challenge to New York City's termination of fire and police employees for participating in a parade. Locur v. Giulani, 269 F. Supp. 2d 368, S.D. N.Y. (2003). For all intents and purposes, Critical Race Theory is a non-issue in the real world.

    Posted by sntauri at 05/03/2009 @ 6:05pm

61. How is that fair? Bush Jr. picked extreme right leaning people. I hope you are kidding. Posted by Cccomfo1 at 05/02/2009 @ 9:40pm

    Kind of. But, it is worth noting that Democrat picks march reliably to the liberal drumbeat, while Repub picks have staked out all parts of the political spectrum.

    Posted by twillie at 05/03/2009 @ 6:47pm

62. But, it is worth noting that Democrat picks march reliably to the liberal drumbeat, while Repub picks have staked out all parts of the political spectrum.

    Posted by twillie at 05/03/2009 @ 6:47pm

    Byron White was appointed by JFK and became a solid conservative on the Court. Ginsberg and Breyer have only been good little centrists, hardly liberal titans in the manner of Brennan or Marshall, or comparable to Scalia and Rehnquist. Breyer was a particularly popular pick with the GOP at the time precisely because they knew he would generally rule in favor of big business, and he has. The only Justice appointed since the Robert Bork hearings who has not fullfilled expectations is Souter, and that was a flat out screw up by John Sununu.

    Posted by cka2nd at 05/04/2009 @ 10:40am

63. Posted by canaro71 at 05/02/2009 @ 01:30am

    So then how does one make judgements in wartime? Or how should ER docs handle triage?

    Would the people of Nicaragua in the 80's or Iraq in the aughts have been justified if they had responded to U.S. aggression by bombing U.S. ports or cities, even if a hundred civilians, including children, were killed? If such an action actually resulted in an American withdrawal that resulted in the saving of thousands of Nicaraguan or Iraqi lives, I would say yes.

    On the other hand, if we replace Nicaragaua and Iraq with Nazi Germany, I'd say no. Bit I would also say that at least some of the British and U.S. carpetbombing of Germany in WW II was immoral, too, because it seemed to be more about vengenance than ending the war.

    An act which may be immoral under everyday circumstances can become, in an extraordinary situation, a morally justifiable one. I am not saying that these are easy moral decisions, and I always try to remember that Malcolm X's famous statement includes a qualifier, "By any means NECESSARY," which so many seem to forget. By keeping that qualifier in mind, even folks on the right side, the generally more moral side, can limit their immoral acts and control their darker impulses.

    Posted by cka2nd at 05/04/2009 @ 11:00am