06/09/2009 05:12 am ET | Updated May 25, 2011

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.