Political Physics: Adding My Two Cents to the Supreme Court Fray

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a blogumn by Monique King-Viehland

Since last week’s announcement that Supreme Court Justice David Souter would be retiring, there has been rampant speculation about President Obama’s choice to replace him.

The Wall Street Journal quoted the President as saying that he would seek a nominee with “a record of excellence and integrity…who understands that justice isn’t about some abstract legal theory or footnote in a case book and someone attuned to the daily realities of people’s lives” — a sentiment conservatives have seized upon as a prescription for what they consider to be unwarranted judicial activism.

On FOX News, Senator Arlen Specter said that Obama needed to pick someone with “diversity…not white. Not male. Not a career judge.”   According to the AP, “Democratic and Republican senators said Sunday they hope President Barack Obama looks beyond the federal bench as he considers a replacement for retiring Supreme Court Justice David Souter.”  And in an op-ed in the New York Times Jeffrey Rosen, a law professor at George Washington University, wrote, “In choosing a successor to Justice Souter, President Obama, who seems to have done his best to do the opposite of what President George W. Bush would have done in the same circumstances, should now emulate his predecessor and pick not the most experienced or demographically appealing candidate, but the one whose views and intellectual ability are clearest, and whose judicial philosophy and temperament suggest the greatest potential for liberal leadership on and off the court.”

Everyone is developing their shortlists of candidates.  Most of those lists include (in various orders) US Appeals Court Judges Sonia Sotomayor, Diane Wood and Kim Wardlaw; Obama regulatory czar, Cass Sunstein, U.S. Solicitor General Elena Kagan; Homeland Security Secretary Janet Napolitano; and Stanford University law Prof. Kathleen Sullivan.

On the flip side, there has already been speculation by folks like Ken Starr that any Obama nominee “could face an uphill battle because as a senator[Obama] opposed two of President George W. Bush’s Supreme Court picks, Samuel Alito and John Roberts.”

Given that everyone is unsolicited advice to the President and his advisors, I thought I’d add my two cents to the fray.

Between aging and illness, we will more than likely see more retirements from the Supreme Court during Obama’s tenure.  He may be in a position to name another one or two nominees to the high court not including the replacement for Souter.  With the right selection of candidates, he could fundamentally alter the makeup of the court.  And with issues like gay marriage, minority rights, stem cell research, abortion, immigration, privacy rights, etc. it is clear how critical these choices will be.

So here are my humble suggestions Mr. President:

1.    Appoint women and people of color.  Senator Specter is absolutely right, the court needs a lot more diversity (and no Clarence Thomas does not count), specifically gender and ethnic diversity.  I’d love to see more women and people of color.  And before anyone asks, yes I do mean qualified women and people of color.

2.    Appoint younger Justices.  I think Stephen Henderson from Freep.Com said it best, “Souter’s replacement could be the start of a liberal core to match the conservative nucleus of the ‘next’ court, which includes Chief Justice John G. Roberts, Justice Samuel Alito and Justice Clarence Thomas, all 60 or younger and likely to be on the court for some time.  If Obama appoints a 50-year-old or someone in their 40s (as Thomas was when he was nominated), that person could serve well into the 2030s on the high court.”

3.    Appoint justices with liberal or moderate legal outlooks.  According to Wikipedia:

…while justices do not represent or receive official endorsements from political parties, jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings, however, refer to legal outlook rather than a political or legislative one.  Seven of the current justices of the court were appointed by Republican Presidents, while two were appointed by a Democratic President. It is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito compose the Court’s conservative wing; Justices Stevens, Souter, Ginsburg and Breyer are generally thought of as the Court’s liberal wing and Justice  Kennedy is generally considered [a conservative moderate].

With issues from gay marriage to stem cells, if Obama hopes to leave a judicial legacy akin to his presidential policies he should focus on building a court with a strong liberal and/or moderate outlook.

So to recap: women, people of color, young with liberal or moderate legal outlooks.

Should be pretty easy to find, right?  Sure.

But at the end of the day, I think the most important thing for President Obama to remember while he is kicking back and reading Fierce & Nerdy (because he is quite fond of the “Political Physics” Blog), is to pick nominees like himself who can build bridges across the legal spectrum as the court continues to tackle issues that will change the fabric of our country.

P.S. How weird is it that two of the nine Supreme Court Justices were born in Trenton NJ.  That’s right Trenton represents!