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James D. Zirin

James D. Zirin

Posted: April 20, 2010 03:28 PM

What a Difference a Justice Makes

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Handicapping President Obama's likely next Supreme Court pick would challenge the talents of Jimmy the Greek. There was a time in the run-up to nomination of a Supreme Court Justice that we mulled over a candidate's writings and speeches to discern liberal or conservative pre-dispositions towards issues that frequently come before the Court--abortion, prayer in school, or same sex marriage. But ever since Sonia Sotomayor suggested that "a wise Latina woman with the richness of her experience would...reach a better conclusion than a white male who hasn't had that life", background and experience have emerged as the decisive criteria in selecting a Justice.

The Court is now basically a monolithic institution, but it is deeply divided. A Justice of the South African Supreme Court, told me once that on a collegial court, diversity is a plus, and most legal scholars would agree. On this Court almost any choice would add a measure of diversity. All nine of the Justices have had prior judicial experience in various federal courts of appeal; all but two were on appellate courts in the northeast corridor of the Nation. Retiring Justice John Paul Stevens is the only Protestant. Two of the Justices are Jews, and the other six are Roman Catholic. Of course, there are two women. Five of the Justices attended Harvard Law School; three others went to Yale. Only Justice Stevens was a non-Ivy Leaguer. He attended Northwestern where he earned the highest G.P.A. in the history of the Law School.

Only one Justice, Sotomayor, ever served as a federal trial judge; not one Justice served in a state legislature, and not a single Justice was the head of a federal agency or department unless you count Scalia who was head of the Justice Department's Office of Legal Counsel. Only three of the Justices, including Stevens, served as Supreme Court law clerks, although two others served as Law Clerks to judges of the lower federal courts.

Law review experience presents a common thread. All but two of the Justices wrote for the law review in law school; and one of them, Justice Ginsburg, served on both the Harvard and Columbia Law Reviews. She transferred from Harvard to Columbia to be with her husband. So the question of the hour is whom will President Obama pick as Justice Stevens' successor. They probably are making book in Chicago on what will be his political calculus. Will he do some old-fashioned political profiling based on the present composition of the Court? Will he be impelled to pick another woman as Justice Ginsburg may be the next Justice to retire, and it may be more difficult to name a confirmable successor after the November elections than it is now?

Will the appointee be someone the President knows from Harvard or Chicago or the campaign trail? Presidents often appoint political cronies, and knowing the President never hurts. FDR appointed Douglas with whom he played poker in the White House. Johnson appointed his favorite lawyer, Abe Fortas who later resigned in scandal. Will he appoint a Protestant on the theory that Justice Stevens held the Protestant seat? Will he not appoint a Jew because two Jewish seats are enough? Can he get away with appointing another Catholic? Will it be someone from his own home state (and Justice Stevens') of Illinois? Will he choose a sitting appeals court judge? There certainly are enough of those. Will he go for a governor (Earl Warren was a governor), a legislator (Hugo Black was a Senator), a state court judge like Holmes, Cardozo or Brennan (Sandra Day O'Connor was both a legislator and a state court judge) or an academic like Frankfurter? Nothing in the law even requires him to appoint a lawyer, although legal training might be desirable.

Is a degree from Harvard, Barack Obama's alma mater (after all, Harvard produced Holmes and Brandeis) or Yale (it gave us Potter Stewart and Whizzer White) a good thing or is it just more of the same Ivy League inbreeding? How does the President wade his way through so many political and practical considerations? On his reported short list of eight, there are six women of whom one is an African American former state court judge, Elena Kagan, the Solicitor General and former Dean of the Harvard Law School (she has the drawback that she barred the military from recruiting on the Law School campus because of the "don't ask; don't tell" policy for gays), two politicians (a sitting governor and a former governor, now a Cabinet member) and three federal appellate judges one of whom is a Westerner who went to Montana Law School and used to be a some time humorist on public radio. I would say may the best man win, but the odds on favorite would appear to be a woman. If you think it unlikely that he appoint a third woman, fret not. There is precedent the other way. Canada, our neighbor to the north, has a nine-person Supreme Court, and four of the nine Justices, including the Chief, are women.

My long-shot pick from the short list is the brainy Governor Jennifer Granholm of Michigan She went to Harvard Law School, clerked on the Sixth Circuit, served as a federal prosecutor and, being a politician, would lend the most diversity to the Court of those running in the field. She is a proven consensus builder. And a consensus builder would be value added on a deeply divided court. The Pew Center on the States recognized Michigan as one of the best-managed states in the nation in the Government Performance Project report entitled, "Grading the States 2008."

A safer bet would be Dean Martha Minow of the Harvard Law School. Dean Minow is an outstanding lawyer, a human rights advocate, a former law clerk to iconic Supreme Court Justice, Thurgood Marshall, and an editor of the Yale Law Journal. What better qualifications do we need?

No one knows what shades of liberal or conservative ideology reside in those on the short list. But, it appears that, since Sotomayor, experience and background may trump ideology as the decisive factor. After all, the President has said that he wants a Justice who will protect the weak from the strong or as FDR put it, the "forgotten man." To do this, he will need to appoint a Justice whose gifts for advocacy and reason are likely to sway other Justices who might cast a "swing vote. Presidents often float a list of possible nominees in Supreme Court sweepstakes in order to mollify constituencies or throw a bone to interest groups. There may be dark horses in the race with names not yet bruited about. It's an awesome decision for any President, riddled with political concerns about what might come out of the confirmation process. Whatever the decision, this choice will leave an indelible impression on the composition of the Court long transcending Barack Obama's time in office.


James D. Zirin is a lawyer in New York. He is co-host of the cable television show "Digital Age." A prior version of this article was originally published in the Washington Times.



 

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