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.