The National Catholic Review

The news of Justice David Souter’s retirement adds another challenging task to President Obama’s already full plate. There is any number of qualified candidates so the challenge is merely a political one.

Everyone seems to think Obama will choose a woman. I agree that women often bring a different perspective to life and its conundrums, and so would likely bring a different perspective to the application of law. The same holds true for picking a Latino or a Latina, which would place the first Hispanic on the Court. Of course, Obama has no idea how many more appointments he may make so the temptation to appoint someone he really trusts, like Gov. Devall Patrick, must be strong. Whomever he picks must, of course, be liberal enough to satisfy his base without being so left of center as to alter Obama’s carefully crafted image as a centrist in governing.

All of these considerations have candidates appropriate to the political dynamics noted above. But there is one person who selection transcends all the different classifications and whose selection would – instantly – galvanize the entire Democratic Party because it would entail the righting of an injustice that was simultaneously specific and so egregious as to appear cosmic. President Obama should nominate Al Gore to the Court. The choice would be electrifying.

Some will object that Mr. Gore is not even a lawyer, which is true. But, there is a long tradition of having those with legislative or executive experience on the Court, a tradition that has fallen by the wayside as Presidents have sought nominees with little or no paper trail. Earl Warren was a lawyer, and had served as attorney general of California, but it was his stature as a three-term Governor who was nominated by both parties for the job that earned him the nod for the Court in 1953.

Mr. Gore spent sixteen years in Congress making laws, serving in both the House and Senate. He served eight years in the executive branch enforcing laws. All this without a law degree.

Ultimately, the case for a Gore appointment is simple. Conservative jurists justify their rulings by appealing to abstract principles such as "strict construction" or "original intent of the Founders" this last despite the fact that even a modicum of historical familiarity with the Founding shows that the Founders had many and varied intentions for the Constitution they crafted. Liberal jurists care about the real world effects of a law. No one has been the object of both conservative hypocrisy (whither states rights?) and a very nasty real world application of the law in the way Al Gore was in Bush v. Gore.

I suspect President Obama will have other nominations by which he can bring other perspectives to the High Court’s proceedings. Mr. Gore might not even desire the appointment. But, in one stroke, Obama could avoid any intra-party grumblings and show to all the world that injustice can be rectified.




Anonymous | 5/6/2009 - 2:42pm
A non-lawyer for the SCOTUS -- great idea!  People are too hung up on things like "qualifications" and "experience."  I had my barber remove my appendix.
Anonymous | 5/4/2009 - 4:28pm
I assume this is non-serious, but if that assumption is wrong, I want to challenge one thing none of the previous commenters have already rightly challenged. You say, ''Whomever he picks must, of course, be liberal enough to satisfy his base without being so left of center as to alter Obama’s carefully crafted image as a centrist in governing.'' Obama is not like a cynical politician who has carefully crafted a false image that he then must devote his attention to propping up. He is not a centrist. He is a principled liberal, which often puts him far to the right of progressives. This is not a calculation. This is who he is. Also, President Obama does not need to ''satisfy his base'' and has not shown himself to be willing to compromise principles in order to pander to that base, with the possible exception of making Hillary Clinton SecState. Anybody remember Rick Warren?
Anonymous | 5/4/2009 - 10:20am
Hey Patrick, you need to understand that the so-called media vote count of the uncounted Florida votes that you refered to didn't really count all of the uncounted votes.They didn't count many thousands of uncounted votes in the heavily democratic counties of Broward and Palm Beach. In addition, the media invented senarios that didn't exist in Florida in 2000 all in an effort to not count all of the uncounted votes in order to hide the real truth that Al Gore had in fact gotten the most votes both in Florida and nationally in 2000. Unlike you, I spent 15 years volunteering on election campaigns when I lived in Florida so I know the laws that your Bush thief deliberately broke to thwart the clear will of the people like the back of my hand. It's sad that the ugly truth about what really happened in Florida in 2000 is too much for you and your don't count all of the votes crowd. What really happened in Florida in 2000 was a broad daylight coup d'etat carried out by Bush and his election stealers that was rubberstamped by 5 republican crooks on the U.S. Supreme Court appointed when Bush's father was Vice President or President. Our country will pay forever for it too.
Anonymous | 5/3/2009 - 11:56pm
"Strict constructionism" is hardly an abstract principle. In fact, I'd be hard-pressed to imagine a LESS abstract principle, given that it means that a law is only to be interpreted according to what is written and thereby we would be spared all the disasters wrought by those who claim to know "what Madison meant when he wrote..." I am at a loss as to how MSW has failed to grasp this.
Anonymous | 5/2/2009 - 8:52pm
I doubt very much that Mr. Gore would actually want the job. He has made himself a name in the private sector that led to the Nobel Peace Prize. But it would serve 'justice'. Al Gore would NEVER 'legislate from the bench', AND would stand for 'states rights' after being a victim of the injustice of Election 2000.
Anonymous | 5/2/2009 - 8:45pm
First, Al Gore does NOT have a J.D. He attended Vanderbilt Divinity School, not law school. Second, who in their right mind thinks that the president, a constitutional scholar in his own right, is going to nominate a non-lawyer to sit on the most powerful bench in the country? There are just so many reasons why this idea is stupid.
Anonymous | 5/2/2009 - 6:32pm
This is absolutely absurd. Gore is going around the world giving talks about CO2 reduction which is his true calling . The fact that you don't even acknowledge how important his cause is, nor the fact that you don't mention how much of his life he currently puts into it , shows how little you know about the man. Why not speculate about someone like Judge Judy ?
Anonymous | 5/2/2009 - 4:32pm
I believe it will be a woman and someone young enough to be on the court for a very long time.
Anonymous | 5/2/2009 - 3:59pm
I saw another great suggestion on the web. How about nominating Anita Hill. What a delicious irony that would be.
Anonymous | 5/4/2009 - 11:44pm
The real argument for Gore would be that he has a strong track record of taking the long term view of issues...a quality that can be argued is greatly desirable in a supreme court justice. It's a refreshing antidote to backwards-looking 'strict constructionism'.
Anonymous | 5/4/2009 - 11:11pm
Needs to pick CoA or good academic. Kozinski on the 9th or Jim Pfander at Northwestern. People who contemplate Gore have little knowledge and implicitly no respect for what the Supreme Court does. I don't care how good your law clerks are, there's no value in someone taking up space on the bench who doesn't understand the enormous background at play in the court's various jurisprudences. don't make a mockery of the court with this gore nonsense. just go get some guns to amuse yourselves for the time being--heller says you can!
Anonymous | 5/4/2009 - 3:45pm
Gore was pro-life before he was pro-choice, since he comes from a pro-life House district.  Without a constituency to please, he might actually vote to overturn Roe, which would be a shame since Madison was fairly clear when he wrote Article XIII of the Bill of Rights, which protected freedoms of speech, press and conscience against the power of state governments.  Had the provision survived conference the slave power would not have been allowed to dominate the south so thoroughly and there might not have ever been a civil war or 14th Amendment.  This article would have also been used to decide Roe in exactly the same way. The main problem the pro-life movement has is that it confuses the tragedy of the result of Roe with the actual logic of the decision, which conforms with a plain language reading of the 14th Amendment (a child has rights at birth, not before, and until it has rights the woman has a privacy interest to be left alone by the state government).  Since Alito and Roberts seem to share that understanding of Roe, the pro-Roe majority is still 7-2.  Until the RTL movement can work within those constraints, it can correctly be regarded as a partisan entity. As far as the counting of ballots in Florida, the real issue is the fact that many voters were excluded incorrectly and probably illegally.  Had that not occurred, Gore would have won.  Gore would also have won if his campaign had insisted that "double votes" where people picked Gore and wrote him in, were counted.
Anonymous | 5/4/2009 - 1:03pm
I too think it will liekly be a woman, especially since Oconnor was replaced by a man. But I was comused by one part of the analysis. Fr mentioned that President Obama will need to pick someone liberal enough to satisfy his base, but not a radival lest the President disturb his carefully crafted, centrism. That man is by no stretch of the imagination a centrist, that would be akin to claiming that Presidents Reagan and Bush and Bush were centrist! I liked them, but I am fully aware they were not moderates. We need to honest with ourselves. If you support President Obama, I personally dont know why or how, you are indeed supporting an extraordianrilly liberal man with a far left agenda. That doesn't mean you are evil, it doesn't mean he is evil, but it does mean you are sitting well left of center, just admit it.
Anonymous | 5/2/2009 - 1:10pm
Great satire here.
Anonymous | 5/3/2009 - 12:51pm
Gore for the Supreme Court? Why do I suddenly feel all warm and global? Thank you for making me smile with your tongue-in-cheek suggestion about Gore. Now, though, as I give it more thought, I have this bone-chilling worry that Obama would actually consider doing it. Of course, Obama could do a lot worse. And he probably will. God help us all.
Anonymous | 5/3/2009 - 7:13am
Very funny! Gore? What a great choice for the unborn! It would be another one of those moves by Obama where he shows the "pro-life" Democrats that he is committed to decreasing abortions. Smoking and getting high on the obama-weed(and pudding)!
Anonymous | 5/2/2009 - 4:24pm
I'm not sure if this is a joke or not. If not, is the author aware of the CBS sponsored effort in Florida where, months after Bush took office for the first time, they sat down and counted the disputed ballots. Their results? Bush won. Hard for CBS to admit, but they did. Maybe it's time for Mr. Winters to do the same.
Anonymous | 5/2/2009 - 4:20pm
Al Gore does have a JD. He has not been admitted in any jurisdiction in the United States. There is no way he could be on a Supreme Court Justice.
Anonymous | 5/2/2009 - 3:46pm
''righting of an injustice that was simultaneously specific and so egregious as to appear cosmic'' -- that gave me a tingle at the back of my neck. Yes, there would be a spectacular lightning-bolt rightness to this.
Anonymous | 5/2/2009 - 11:49am
I agree ..Gore would be a good choice.... but I think it's a woman's time for sure..

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