The Next Justice: What Obama Wants

What criteria will President Obama take into account is selecting his first nominee to the Supreme Court? I think four factors will be especially important to him.

1. High level of intellectual ability. As a professor of constitutional law, Obama fully understands the complexity of a Supreme Court justice's responsibilities and the importance of analytical fire-power both to meet those responsibilities and to persuade colleagues. He will want his legacy to include the appointment of Supreme Court justices of whom he can be proud. A very high level of intellectual ability is certainly a prerequisite to that. Anyone can cast a vote. Obama will want much more than that.

2. Moderate liberal. Obama will want his nominee at the very least to be as "liberal" as Souter, Breyer, Ginsburg and Stevens. He will not want to make an error on this, and therefore he will appoint someone whose record is well established. He definitely will not want to appoint a justice who later turns out to be conservative. The terms "conservative" and "moderate liberal" are not self-defining, of course. But at their essence for Obama, I suspect, is his continuing reference to "empathy." He wants to appoint a justice who understands that a unique role of the judiciary in our system of government is to be especially attentive to the interests of the unrepresented, the oppressed, political and religious dissenters, those accused of crime, and minorities who have traditionally lost out in the political process. On the other hand, I do not think Obama will appoint a "true liberal," like William Brennan or Thurgood Marshall. Although the Court desperately needs such a voice to counterbalance the very conservative voices of Scalia, Thomas, Roberts and Alito, my guess is that at this moment in time Obama will be reluctant to spend the political capital that might be needed to overcome the opposition to such a nominee. The difference, in my view, between what I'm calling a "moderate liberal" and a "true liberal" is that the former tends to be incrementalist in decision making whereas the latter tends to be much bolder and visionary.

3. A strong voice about the role of the Supreme Court. For several decades, conservatives have articulated and promoted a highly conservative conception of the proper exercise of the judicial power, using such catch-phrases as "originalism" and "strict construction." Although there is much less to these notions than people think, conservatives have quite effectively changed the terms of the debate about constitutional law since the Warren Court era. For several decades, progressives have struggled to counter this public relations onslaught, but largely without success. There is now no clear consensus about what a "liberal" or "moderate liberal" justice does, other than to decide individual cases in a particular way. The Court and the nation badly need a justice who can articulate a progressive view of constitutional interpretation, both to counter the conservatives on the Court and to change the terms of the national debate. Obama will want a justice who can do this.

4. Build consensus within the Court. For the long run, the Court needs a progressive justice who can work effectively to build consensus on controversial cases. William Brennan was a master at this. Some of the current justices do this well, but among the moderate liberal justices they are all nearing retirement. Obama will want to appoint a justice who is a strong voice, but at the same time knows how to compromise and to find common ground. A justice with a highly adversarial-style, like Antonin Scalia or William Douglas, would not serve Obama's interests.

5. Diversity. Among the possible nominees who satisfy the first four criteria, Obama will want to appoint a justice who adds a measure of diversity of experience and perspective within the Court. This suggests a woman, a Hispanic, or an African-American.

Comments

[BARRISTER]

How about a black, Female hispanic??? Three in one fell swoop.

[sej100]

Personally Im offended by the GOP and their picks.
The GOP justices have been radicals. They are NOT strict constructionists. Bush v. Gore was an exercise not of constitutional thought but a POLITICALLY CHARGED DECISION WITH NO BEARING TO THE CONSTITUTION. The Repugnicans just speak in false sound bites.

Strict construction only means the guns. They care NOTHING for the rights inherent in the Constitution and violate relentlessly the clause that the Constitution shall not establish a religion. They are trying to make ONE religion's preferences the law.

I am so disgusted by what the GOP has become. the Party of lies, sound bites and corporate money. Yes they do not want health care because their LOYALTIES ARE THEIR CRONIES AND THEIR SUPPORTERS THE INSURANCE INDUSTRY. They hate trial attorneys only because the INsurance companies do. Without the trial attorneys no one would represent the peoples rights.

[DragonMama]

You forgot one other very important criteria - age. He needs to appoint someone who will likely outlive Scalia and Roberts so the balance isn't tipped conservative too easily too soon. He needs to appoint someone close to or younger than 50, closer to 40 if he can find someone with the reputation and experience to show that they're right for the job (from your other criteria). Female, ethnic minority, gay - any of those would be great, but longevity has to rank above those.

[Doofus]

The leading contenders all seem to be in their early fifties.
It seems unlikely anyone with sufficient judicial experience
is going to any younger.

[noneIn2008]

Don't buy the facade of liberal vs conservative. The core question is supporting the constitutional rights of the people or turning more power over to the federal government. They use red herring issues like abortion to distract our attention. Our "liberal" justices voted on Kelo to give a persons house to land developers for bigger shopping centers. That's liberal? None of them will move Roe, because it would only be reducing power of the Supreme Court, you don't over rule yourself for politics. But you use this issue to distract people from checking the real agenda of the Federal Government.

[PDXKevin]

and as always, comments are closed on borowitz's post... why?
oh yeah, he suck at being funny...

[overd0g1]

The constitution is circling the toilet bowl now. Obama will provide the final flush. He will ensure that justice is no longer blind, but applied differently depending on the ranking of the particular favored group under consideration. Alas, defending the constitution is no longer the role of the court, inventing new rights and legislating is their role.

[peasantlear]

Whoever the nominee is, if the r's filibuster, let them really filibuster, rant, and rave. When the marginal utility of their dropping poll numbers begins to level off, pull back and concede defeat. We respect tradition more than they did with their "up or down or nuclear" shenanigans, and they win the day.

Let the seat remain vacant. 2010: with over 60 solid dems in the Senate, no smoke or mirrors this time, reconvene and seat someone who would be even more to the left then someone who was approved in the current environment.

Perhaps too risky, as this assumes r's go down in flames next November, and I've no idea what may come before the Court between now and early 2011.

[ddDinah]

ONE WORD: WOMAN....!!!

[CharlieQ]

HILLARY!!!!!!

JOHN KERRY FOR SEC. OF STATE!!!! ASAP

[WarSkeptic]

My criteria seems much different than yours

1. Do they believe that individual states have the power to restrict civil rights based on the will of the voter, or is it the court's job to stop the states from discrimination?
2. Do they believe that money is considered the same as speech with regards to the first amendment?
3. Do they believe that a corporation has the same rights as a citizen?
4 Do they believe it is illegal to fire people for attempting to start a union?
5. Do they believe that POW's in the war on terrorism are somehow different from all other POW's and require less legal protections?
6. Do they believe that international treaties that we have signed are legally binding?
7. Do they believe the government has the power to regulate greenhouse emissions?
ect.

[overd0g1]

I assume by greenhouse gasses you mean water vapor, by far the largest contributor to warming the atmosphere.

[creepsinc]

Two words: Norm Stamper.

That would bring REAL diversity to the court.

[Kassandra]

"centrist" and "progressive" are mutually exclusive terms.

[Freesia2]

What are you saying? I'm trying to follow.

Mr. Stone is pointing toward a "moderate". When I think centrist I think of someone who rides the proverbial crack - never too far left or right. When I think moderate I think of someone who is perfectly prepared to push through a liberal (or for that matter conservative) agenda - but in moderation. Achieving in the end the same goal the progressive wants but in such a way that they don't turn it into an explosion. (Explosions frequently backfire - one of the reasons that progressives often have trouble achieving a goal or attaining an office. They're so extreme - well meant and even right, but out there - that they often lose ground.)

Full disclosure, I'm Independent and consider myself a moderate. I don't think of myself though as a "centrist". Sometimes you have to focus on a progressive goal, but I think how you get there is often done in stages.

[Lynwood Walker]

I would actually argue its moderates who have trouble achieving goals not liberals are conservatives. We haven't had an unapologetic liberal in the lead of this government in years, but when we did we achieved social security and many other important programs and safeguards.

Conservatives achieved pretty much their entire agenda under Reagan and Bush.

I really think its moderates who fail to achieve anything because by nature they are slightly embarassed and unsure of their political leanings. They tend to be incrementalist meaning they believe in slow steady change over quick, sweeping reform. This doesn't function in our government because power changes hands too quickly, public support evaporates, and situations alter themselves constantly. Politicians try to hoard all their political capital and fail to see it dripping from their hands unused. So we end up with two or three dozen half began measures that are easily erased, and are so diluted in efficiency (compromised) that the next administration can easily erase the gains, or they prove so ineffective that no one approves and it invariably caste a negative light on the more pure, and powerful progressive legislation

[DragonMama]

So, by your definition, a "moderate" is, at heart, a progressive or radical right-winger at the core, but they've read and implimented the 7 Habits of Highly Effective People?

OK. Then I'm a Progressive Moderate. I am the first to own up that plenty of my Progressive friends want to storm through the battlefield without bothering to note where the most obvious of landmines are sitting. I've seen how much the New Deal has been shredded. I don't want to fight a battle just so my grandchildren can fight it again. I think the "storm the Bastille" type progressive is part of the reason that people under 35, even when they agree with the goals, are hesitant to get involved because they know the effort is doomed to fail due to tactics, regardless of how needed/int­elligent/c­ommon good it might be.

[janedarcy]

let the supreme court reflect the country

Men (49% OVER Represented) check
African American (11% check)
all finished there

Women (51% I think not)
Hispanic (13% still waiting)
Asian still waiting
Gays (10% and still waiting....)

[vie2012ne]

How about adulterers? Must be at least 50%.

[SeymourButz]

How do you know gays make up 10% of the population when it is impossible to measure? And why does what people do behind closed doors even matter, and why does that have to be represented?

[overd0g1]

How about just putting in the most qualified, regardless of what box you've put them in. Apparently that's off the table these days. I say select them by their favorite color.

[sd4david]

Catholics-WAY over represented.
Singles- under represented.
Idiots who don't understand/accept conflict of interest rules in recusing themselves from cases WAY over represented-"Sure, I hunt with the Cheney, but I don't feel the need to recuse myself from cases involving him.

[MocksNix]

Actually, the Court needs someone with a strong military background. How many of the Justices are ex-combat vets?

I thought so...

[Doofus]

Since the Supreme Court NEVER interferes with the
C-in-C's military prerogatives, why would this be so?

[Captain Lionel Mandrake]

What? A military background? I disagree. It seems we all hear all the time from people who've been in the military. Ordinary civilian citizens are never listened to. A country of militarists. To get a hearing, become a "combat vet." Everybody hits the carpet when a "vet" talks. Why? Do they know anything a civilian doesn't? The first step up the corporate ladder of Conglomko Corp is to have been a "vet."

[AngieMom57]

Judge Bea Ann Smith

"Judge Smith has served as President of the National Association of Women Judges and on the Board of Directors of the International Association of Women Judges."

[drbillybob]

Anybody here want to bet that Obama chooses a Justice with at least two checkmarks in the "minority" column?

I'll define this "minority" criteria as female, non-white, gay. Anybody? C'mon, two of three? Who's betting against me? Anybody?

[AngieMom57]

betting against u...hummm....

"not I, said the magpie"

[Kassandra]

Wanda Sykes?????

[zest]

I think Obama will appoint Wanda Sykes, and rightly so.

[overd0g1]

How about a Nazi party member. They're in the minority.