Obama's Next Appointee

Part I
President Barack Obama, because of Justice Souter's anticipated resignation, has a wonderful chance to begin to shape the next few decades in this country. It would be a tragic mistake for him to raise the illusion of bipartisanship as an excuse not to fight for the best candidate.
Age is a factor he should pay particular attention to. The average age for Democratic appointees has been close to 63. The average age for Republican appointees, including the appeals and district judges, is far lower. But male appointees are seven years younger, on the average, than Clinton appointees; with female appointees the disparity is greater. Most of the present judges being considered are older than the Republicans would have considered.
The Republican stranglehold on the Court, which has existed for the last 25 years, will, as I pointed out in my book, The Next 25 Years, continue for another 25 years or more unless Obama appoints someone different than the names now being circulated.
Since the 1970's, the average age of appointees to the Supreme Court bar was 53, and the average length of service on the Court was 26 years Since then, the ages at appointment have gotten younger, the retirement ages later, and the tenure longer
As Ronald Reagan and George W. Bush before him, he has an opportunity to reshape the Supreme Court in a new, dramatic way. He may have as many as three appointments this term and more if there is a second term. Franklin Delano Roosevelt, to whom he has been compared, recognizing the need for radical change on the Supreme Court, fought the Republicans tooth and nail on his selections in order to lift the country from economic depression and despair.
The best job criterion for selection to the Court is if he or she is a former elected official. It takes a politician to push through the greatest decisions of the 20th Century. The great decisions of the last hundred years were written by Thurgood Marshall, Frank Murphy, William Douglas, Hugo Black and Earl Warren, not previous members of the judiciary. They did not live in the isolation of the legal world, like the academics and jurists that Obama is now supposedly considering.
Justice William J. Brennan was an exception - he was very different from those jurists whose names are now being circulated. Although formerly a jurist, he was relatively unknown, well outside the Beltway and way outside traditional circles. I would like to see younger versions of them appointed their like appointed. They are available.
As I pointed out in my two previous Supreme Court Books (Courting Disaster and The Next 25 Years), these Justices fought against big business in the Congress, at the Securities and Exchange Commission, against race discrimination in the state schools and the workplace, and against police brutality at the stationhouse. They helped give the country a moral compass. A court with any of those members today would most likely have reached far deeper in its decisions to stop some of the Bush excesses in its treatment of detainees, probably having learned from the way we set up the Japanese detention camps in World War II.
The 21st Century requires 21st Century judges, judges who have lived lives that let them see how Americans are affected by the executive, legislative and judiciary branches. Not academics - not professional jurists. Obama originally said he would appoint "people who have life experience and . . . understand what it means to be on the outside." He seems to have lost that path.
It can be argued that with a four person minority that will be unchanged irrespective of whether or not Obama appoints a moderate Democrat or a liberal, it does not matter who he appoints - it will not change the balance. And, since it doesn't make a difference, it can be argued there is no reason to go to war over the nominee. I disagree.
It is not only the kind of liberalism these Justices brought to the Court. The most important influence of great Justices, particularly Earl Warren and William J. Brennan, is not so much in the kinds of decisions they wrote but in the way they influenced the country as well as other members of the Court. They were beacons of democracy and morality. Their courts gave us one-man/one-vote, proportional representation, school integration, a woman's right of choice, and due process.
TO BE CONTINUED . . . .