Whom should President Obama nominate to replace Justice John Paul Stevens? The question is today Washington’s favorite parlor game. Last year, I somewhat mischievously suggested Obama nominate Al Gore to the Court and, lo and behold, tonight, on MSNBC’s "The Ed Show," my suggestion was the basis of an interesting discussion between the host and the New Yorker’s Rick Hertzberg.
Hertzberg, like me, thinks it is very important that the President nominate someone whose experience of the law is not limited to the rarefied experiences of the classroom and the federal bench. It is vitally important that the Court have someone who actually knows how law is made, who has been a party to the negotiations that are needed to pass legislation, experience that would make it clear that "legislative intent" is sometimes an unclear thing, that people can vote for the same law for different reasons. Someone who has actually campaigned for office. Sandra Day O’Connor was the last justice to have legislative experience. Earl Warren, of course, had been a governor. The point is that the judicial branch would be well served by having in its highest court someone with direct experience of one or both of the other branches of government.
This sense of the complexity of the legislative process extends to the Founders. "Originalism," the belief that the role of a judge is to ascertain the original intent of the Founders, has always been an intellectual pipedream begging the question, ‘Which Founder?" It is obvious to any student of history that Jefferson and Hamilton wanted wildly different things from the Founding.
So, whom to choose? Of course, my preference would be Obama to choose Sen. Bob Casey. For starters, the Democrats currently have two candidates for one Senate seat in Pennsylvania and Casey’s appointment to the Court would open up a second seat, making a divisive primary unnecessary. Secondly, the idea of a pro-life Democrat going on the Court would, I suspect, help defeat the idea that Obama is some kind of leftie radical, and would force those all-important swing Independent voters to reconsider their acceptance of the Fox News interpretation of the Obama presidency. Alas, there is a midterm election in the fall, and midterm elections are all about getting the base fired up, and nominating a pro-life justice to the Court is not the way to fire up the Democrat base. (Yet! We’re working on it!)
Governor Janet Granholm and Secretary of Homeland Security Janet Napolitano have been mentioned. Both would be fine choices. I would also like to suggest Congresswoman Linda Sanchez from California. Another Latina? Wasn’t Sotomayor enough? Such questions are repulsive. Why shouldn’t there be two Latinas on the court? Did anyone object to there being nine WASPs on the Court in earlier times? Let the Tea Party crowd raise the objection to another Latina. In addition to being a member of Congress, Sanchez was a labor lawyer before running for office, and the Court today faces many cases in business law where some liberals tend to get weak knees. If it can be said of civil rights that there are some on both sides of the aisle who are profoundly motivated by a concern to protect individual Constitutional rights, the same cannot be said about the relationship between business and labor. Sanchez is also considerably younger – and funnier – than Granholm or Napolitano, which is always an understandable concern when making such a nomination.
There has also been mention of Secretary of State Hillary Clinton. If she were not doing such a great job at the State Department, I would strongly urge her nomination. Smart, competent, always prepared, she would be an outstanding addition to the Court. But, she is doing a great job at State, putting first rate people in key assignments, serving as an effective voice for the nation abroad at a time of enormous challenge, and keeping any and all Foggy Bottom infighting far from the front pages. Why would you upset that apple cart, at least not in the first term.
In any event, I hope Obama will nominate a woman. I am no tokenist. No one should be put on the court or given any government position simply because they fulfill a pre-ordained quota. But until we have the experience of a majority of the court being women, people will continue to focus on gender as an issue when we should be focusing on other personal and professional characteristics. Once we cross a gender- or race-specific threshold, the issue never really comes up again. That is a healthy development and as the above makes clear, there is no shortage of brilliant women, with experience in the other branches of government. The President should be proud to pick any one of them.
Well, Mr. Bindner, that says more about him, and by extension, you, than Justice Scalia. Right or wrong, I think no one would rightly call Justice Scalia an idiot.
"Survey research done on the acceptance of individual rights shows that they are better protected by elites than majorities."
Yeah, that seemed to work really well in Stalinist Russia.
And you have this really annoying (and bad) habit of cutting down serious legal arguments with which you disagree as if they were self-evidently false, i.e. your misunderstood idea of originalism as an "intellectual pipe-dream". Fine if you disagree, but you have to ARGUE why, rather than just flip a hand. You may not like to hear it, but Antonin Scalia is a pretty smart fella, and perhaps the most effective rhetorician on the court since Warren at explaining his views.
Uhh, excuse me, but those state legislative attempts are passed to stop unelected judges from imposing their beliefs on a majority at the point of a PEN. And those "legislative" majorities are the people of those states passing constitutional amendments - the most broadly democratic (small d) efforts imaginable. If you're incapable of convincing your fellow citizens to agree with you, that is not, unfortunately, a matter of constitutional import. If you can't get it passed in CA, then you're just not very persuasive. Scalia is the justice for you, Mr. Bindner.
Survey research done on the acceptance of individual rights shows that they are better protected by elites than majorities. This is demonstrated time and again and is the reason we have a Bill of Rights.
Of course, if you really want mob rule instead, you can try Venezuela.
I am not sure I care about the demographics. What I care about is that the nominee has a mainstream understanding of equal protection law and a healthy commitment to making sure that the federal bench is used to repeal attempts by state legislative majorities to impose their beliefs on others at the point of a gun. Such a belief not only protects homosexuals, women and gynecologists, but also Catholic parishes in the South.
I have absolutely no problem with someone who would agree with a federal abortion restriction, whether it be partial birth abortion or a broader restriction based on fetal age rather than position in the birth canal. I think there are probably six votes already who would vote for this proposition. Adding a seventh would clear the way for a grand compromise on the issue. Indeed, if the right-to-life camp broke faith with the Federalist society, it would find it could get a lot more done (although that would diminish its value as part of the Republican electoral coalition).
On the issue of gay marriage, the die is pretty much cast as the likely result of the Proposition 8 case will get the votes of Kennedy and Roberts. It might even be affirmed unanimously - so the issue is all but settled (which is not good for the Lambda fund and the Human Rights Campaign - since winning means no fundraising).
From the point of view of real cases, Michael's best pick is Linda Sanchez, since labor issues come up much more frequently than either abortion (which is basically settled until Congress does something to restrict late term abortion) or marriage equality (which will have exactly one case).
I also misquoted Epps. He did not directly call Scalia an idiot. However, he made it clear that Scalia's views on the 14th Amendment were ahistorical (which is not good for an originalist). Historian and Catholic author Gary Wills also has some interesting things to say about such topics in his tome, A Necessary Evil.
Both A Necessary Evil and Democracy Reborn should be mandatory reading for candidates for a judicial nomination at all levels - particularly at the SCOTUS level.