Who should replace Justice Souter?

President Barack Obama will get his first chance to appoint a Supreme Court justice this year because of Justice David Souter’s plans to retire. Here is my wish list:

1. Obama should leave no opening to question whether his nominee is qualified for the Supreme Court. The easiest way to accomplish this would be for Obama to elevate one of the many good judges Bill Clinton appointed, who now have a decade or more of experience in the federal court sytem.

2. Among the highly qualified candidates, Obama should pick someone who is not a white male. Normally I detest identity politics, but this is the exception that proves the rule. Only two white women have ever served on the U.S. Supreme Court. Only two black men have ever served on the court. No Latino or Asian men or women have served on the court. It’s not a question of picking someone less qualified. I assume that approximately 200 Americans are qualified for this job, and many people with superb credentials are not white males. Some of them are mentioned here.

3. I don’t want Obama to use this opportunity to prove how bipartisan he is by nominating some middle-of-the-road judge. George Bush’s extreme right-wing nominees, John Roberts and Samuel Alito, need to be balanced. I am not saying Obama should pick a radical left-winger, but he should pick someone better than “centrist.”

4. On a related note, I would like to see someone to help move the Supreme Court away from its current pro-corporate bias. Clinton’s appointees were quite corporate-friendly, especially Steven Breyer. Bush’s appointees were extremely hostile to the rights of workers and environmental concers. I want someone who will bring some balance to the court.

5. Mr. desmoinesdem adds that Obama should pick someone with expertise in criminal law. None of the current justices had that background when they were appointed, but the Supreme Court hears many criminal law cases. I would assume that any judge with a decade of experience in the federal court system would be sufficiently familiar with criminal law.

I am confident that Obama will pick someone qualified. I am reasonably confident he will pick someone who is not a white male. I am less optimistic about whether he will pick a liberal. Given the economic team Obama has assembled, I am pessimistic about the chances for him to pick someone with less of a pro-corporate bias.

What do you think?

Todd Beeton spoke for many when he wrote last night,

Dear Justice Souter,

Thank you for waiting.

Thank you.

I’m grateful to Justice John Paul Stevens, but in some ways Souter deserves our thanks more, because for the last eight years he put his own preferences aside for the sake of the public interest.  

After the jump I’ve posted an excerpt Mr. desmoinesdem showed me from Jeffrey Toobin’s book The Nine: Inside the Secret World of the Supreme Court. It describes how Souter was “shattered” by the majority’s ruling in Bush v. Gore.

From page 177 of The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin:

With one exception, the justices tried to put Bush v. Gore behind them and resume business as usual. Three weeks later, Scalia and Ginsburg followed their custom of welcoming the New Year with each other’s families. Breyer, characteristically, made a systematic effort to take many of the disappointed liberal law clerts to lunch. In restaurants, often at embarrassingly high decibels, Breyer urged the young lawyers to maintain their faith in the Court and believe that their views might someday return to favor. O’Connor tried to avoid discussing the case. Kennedy pretended the whole matter was no big deal.

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal. Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole live was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

  • New Republican ranking member on Jud Cmte

    I was wondering whether Souter’s retirement changes your earlier thoughts on whether Sen. Grassley should become the ranking member on the Jud. Cmte?  Not only is there a SC opening that will come before the committee, but it increases the need for at least some bipartisanship.  

    Apparently, the procedural rules of the committee requires at least one vote from the minority party to advance a nominee to the full Senate.  It wouldn’t be shocking to me if Sen. Sessions tried to play hardball with a nominee.  Sens. Grassley or Hatch would seem to be more willing to comply with the traditional norms of advancing a SC nominee to the full Senate, even if there is broad opposition from the minority party.

    • Sessions was rejected by the Senate

      20 years ago, so I wouldn’t expect him to compromise with Democrats on anything.

      Hatch worked reasonably well with Clinton–in fact, I believe Hatch suggested Ginsburg and Breyer as judges who probably would have little trouble getting confirmed.

      If I were Grassley I would still stick with Finance this year. Health care reform has the potential to be one of the most important bills in a decade.

      Roll Call has a story saying Grassley would like to become ranking member at Judiciary beginning in 2011, when his time’s up at Finance.

  • Woman

    Simply, a woman.

    The lack of women on the court is very unfortunate.  The president realizes this, and there is absolutely no way that he will NOT nominate a woman.  It was 9-0 for two centuries, then it was 8-1 for a decade, then 7-2 for another decade, and now it’s back to 8-1.

    I can’t state this more emphatically.  It will be a woman.  100%.

    Having said that, I’m guessing it will be a minority woman.  Having said that, I’m guessing it will be a Hispanic woman.

    Having said that, I’m guessing she be under 60 years old.

    Having said that, the clearest two options are Elena Kagan and Sonia Sotomayor.

    Having said that, I’m guessing it will be Sotomayor.

    You mentioned that he needs to appoint someone who is anti-corporate.  Sotomayer would be this person…plus she fulfills most of your requirements.  (Not sure about her background in criminal law, though.)

    Plus, she would be a breeze through confirmation hearings, and Republicans wouldn’t (and couldn’t) filibuster her.

    In four months, Sonia Sotomayor will become the first Hispanic person to serve on the U.S. Supreme Court.

    • I suspect you are right

      Sotomayor is relatively moderate and would have no trouble being confirmed. It would make sense for Obama to start with her. He is very likely to have at least one or two more chances to name a Supreme Court justice.

  • Souter will be missed...

    I’ve been reading some of the articles written about Justice Souter lately and it seems that the court is going to lose a truly outstanding legal mind and a fascinating character. I suggest this article, it gives a very interesting perspective on the man:

    http://www.slate.com/id/2217434

    I’m not a fan of identity politics either, however I don’t feel the Supreme Court should be an exception. Just pick the sharpest, best mind. Male, female, black, white, animal, vegetable or mineral.

    That said, the one factor I think President Obama should consider (and has said he will consider) is that the next Supreme Court justice should have experience outside academia and the courts. I’d even suggest a justice with NO previous bench time, or at the very least, someone from outside the federal system. Maybe someone like Jennifer Granholm or Ken Salazar? Even Deval Patrick would seem to be a worthy choice.

    If Obama wanted to really stretch his 59 Senate votes, he could even go with a Robert Reich or even Hillary Clinton.  

    • there is no such thing

      as the sharpest, best mind for a Supreme Court vacancy.

      Many people are qualified for the job, and I don’t see how one “best” person could ever be identified.

      I don’t think he should choose a non-judge for his first vacancy. I agree with you though that people from the political system should be considered in the future.

    • regarding Souter

      I remember when Poppy Bush picked him (on the advice of then Senator Warren Rudman of NH and then presidential chief of staff Sununu). I thought this guy would be a conservative ideologue like Alito is now, and was sure he was picked just because he had no paper trail. Boy was I wrong about Souter. (And boy did Poppy Bush regret selecting him instead of some other Clarence Thomas type.)

    • There has to be a best candidate

      Are you saying we should just throw all the qualified candidates into a hat and draw at random?

      There has to be a best candidate. Someone has the best approach to legal theory, the best legal reasoning, and is the most persuasive.

      As for picking a non-judge, some of the justices who have most shaped the court were non-judges…Earl Warren and William Rhenquist among many. Right now, the court has no one who comes from outside a judical/academic background.

      And a lot can change in three years. Obama might not get another court pick.

      • I don't think there is a best candidate

        according to any objective set of criteria, any more than there is a best novel or best song.

        A lot of senators would like to see Obama choose someone from outside the federal judiciary. Maybe he will go that route, but I doubt it will be on his first pick.

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