Wish list for Justice Souter's replacement

I want to start another conversation about the criteria President Barack Obama should use in choosing Justice David Souter's replacement. 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 on Thursday night when he thanked Justice Souter for waiting to retire. 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.

Tags: Barack Obama, David Souter, SCOTUS, Supreme Court (all tags)



Re: Wish list for Justice Souter's replacement

I disagree in every particular with point 1.  a)Obama should invite controversy to further empower the crazy wing of the Republican party; b)there are way too many judges on the SCOTUS already, and I know that sounds weird but the Court was created as a repository for our wisest rather than our most expert, a subtle distinction but valid where you have just cited the opinion that an excess of cynicism gave us Bush; c) "leaving no opening" for criticism and "Bill Clinton appointed" are mutually exclusive in this political climate, Obama could best avoid criticism by picking a Reagan or elder Bush appointed federal judge who turned out to be a 'stealth liberal.'

But I'm still holding out hope for Sarah Weddington.  Truly, I doubt she could be confirmed, but her nomination would shift the Overton Window drastically in our favor.

by Endymion 2009-05-02 08:34AM | 0 recs
Weddington doesn't have the horsepower...

You want to screw with the right wing, pick Kathleen Sullivan, THEN let them try to say she is not qualified...

Without mentioning the fact she is openly gay and has filed a lot of briefs on gay rights issues...

And the problem with your suggestion to pick a Reagan appointee is age.

Roberts and Alito are part of the Federalist Society plan, build a young judicary, then pick YOUNG for Scotus to look in the courts for years.

Obama needs to pick someone in their 40s, MAX!

by WashStateBlue 2009-05-02 09:08AM | 0 recs
Re: Weddington doesn't have the horsepower...

Roberts was 50 when he was picked and Alito was 55, so that age bracket seems ideal for picking experienced judges who will be there forever. You don't need to go the Clarence Thomas route and find someone under 45, but you just don't want to go much over 55.

by raginillinoian 2009-05-02 09:13AM | 0 recs
Sotomayor is 54....

Kathleen Sullivan is as well....

Leah Ward Sears, same...

Plenty in that age group:

http://en.wikipedia.org/wiki/Obama_Supre me_Court_candidates

Yeah, I am a purist, I would LOVE to have someone on the courts to at least outlast Alito and Roberts...

by WashStateBlue 2009-05-02 09:17AM | 0 recs
Re: Weddington doesn't have the horsepower...

If you'd ever met Sarah you wouldn't say she doesn't have the horsepower.  She looks and acts like a 45 year old.  

I ask again, is 'gay' really more frightening to the right than 'abortion'?  I would say abortion, but whatever supports my actual point, that Obama should push hard left and then 'compromise' to whatever he wanted in the first place, is fine by me.  I never suggested picking a Reaganite; I just said it would be least controversial, while actually suggesting we go for as much controversy as possible.  

But if the problem is that the cons on the court won't go away soon enough, that's what we should be addressing.  Moving deliberately and relentlessly, we can get them off the court over the next decade or so.  There's a multitude of corrective possibilities--25 year term limits, impeachment over Bush v. Gore, freezing or lowering Justice pay, moving public opinion away from accepting Justices that are mid-career, even Roosevelt's court-packing Amendment--if we move slowly we can fix our court without getting in a race to the bottom with the Club for Growth.

by Endymion 2009-05-02 09:44AM | 0 recs

I'd add a point 0 to the above: I want to see someone young.  If you're going to be stuck with Roberts for 60 years, well, turnabout is fair game.

by Kalil 2009-05-02 12:08PM | 0 recs
Re: Wish list for Justice Souter's replacement

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.

If you can find one in their early 50s or late 40s then sure, but somehow I doubt Clinton elevated many excellent circuit court judges fresh out of law school.

Next to competence in Constitutional law, youth is probably the most important criterion.

by Jess81 2009-05-02 08:49AM | 0 recs

I sort of read a bit of the Clinton crowd here, reflecting their bias.

Now, I have NO problem with a Clinton appt, like Sotomayor, but my main criterion has to be liberal (or center left ) and AGE.

Alito and Roberts are their for 30+ years, and that was no accident, but part of the Federalist Society master plan.

by WashStateBlue 2009-05-02 09:10AM | 0 recs
Re: Exactly!

Sotomayer fits the age requirement as she is around the same age as both Douchbag 1 and the Chief douchebag.    She's another woman, highly qualified, has a great rags to riches story and would be the first Latino.   She's my top pick.

by 30000Fine 2009-05-03 08:18AM | 0 recs
Re: Wish list for Justice Souter's replacement

Wow, I didn't know Souter was so affected by Bush v. Gore; he does deserve the greatest credit for his selfless decision to continue serving. I remember reading all the dissents, at the time, and it was Stevens who sounded the bitterest. Souter, as I recall, sounded more like a professor calmly explaining to his students that a certain assignment had been extremely simple and thus he was rather surprised they had managed to fuck it up.

by Rob in Vermont 2009-05-02 08:57AM | 0 recs
Re: Wish list for Justice Souter's replacement

I don't care if he picks a judge, politician, or janitor. I would definitely prefer that it be a woman, and ideally a Latina to break some new ground, but if the best choice he finds is a man, so be it. Whomever he picks must be as liberal as Souter is (or more so) and must, must, must be young (55 or under). Clinton chose a 60-year-old in Ginsburg, which was fine except that here we are 15 years later and she is a couple years from retiring while Thomas, Roberts, and Alito are all Boomer generation spring chickens and both Kennedy and Scalia are aging but quite healthy, with no retirement in sight. The Chief Justice is 53 years old! (While the senior liberal is 88 and the sole woman is 76.) So, age is probably my #1 concern.

by raginillinoian 2009-05-02 09:11AM | 0 recs
Actually, there have been rumors about Antonin's

health, but the Scotus Blog group loves to gossip....

I think (yes, hope springs eternal) that Obama has a 50-50 shot at replacing either Thomas OR Scalia by 2016.

And, that my friends, will be a war.  

Scalia, perhaps only compared to Ronnie, is a god to the right.

If Obama were to suggest replacing him with a liberal, OMG, you would have Conservatives threatening to firebomb Scotus.

by WashStateBlue 2009-05-02 09:21AM | 0 recs
Screw the right

They will fight no matter what, and do that I say, tough. They lost. We won. We had to suck it up as they voted for crazies like Alito who seriously argued during his confirmation that a person working in a mine is not a mine worker for the purpose of a statutory construction in which he was trying to limit the rights of workers. So I say- screw them, and the ignorant supporters who do not realize the Court is not just about abortion, but instead a whole range of issues that define our daily lives.

by bruh3 2009-05-02 09:27AM | 0 recs
I agree. but you have another force to contend


The Conserva-dems.

Hopefully in Obama's second term, we might have some more liberal senators, but I think 2010 is going to be a problem, as I think Chris Dodd will stubbornly run again, and get beat by a Republican, and Il is sketchy, unless Roland Burris does the right thing and step aside.

Just saying, dont think we have 59-60 votes that want Liberals on the court.

I think Evan Bayh and Ben Nelson would argue harder against Kathleen Sullivan then they did against Roberts and Alito.

by WashStateBlue 2009-05-02 09:33AM | 0 recs
Re: I agree. but you have another force to contend

I thinkw e need to test your assumptionr ather than wait. Right now, I am agreeable on putting a latina like the moderate judge being mentioned. but, overall, the next pick should be a hard core liberal along the lines of Patrick Deval (fromt he political process) or the one you mention from the legal process. I also think that, by the way, we will get to replace Thomas before the end of Obama's first term.  He's another Souter, and I don't think he will wait.

by bruh3 2009-05-02 09:53AM | 0 recs
Re: I agree. but you have another force to contend

I wouldn't worry about IL... Burris is a non factor.  He either won't run or will lose in a primary.  There are too many people with their eyes on that seat right now.    

Of course what happens with Quinn will play a role... but assuming Quinn's favorables are high enough and he runs for a full term, Burris is toast.  Even if Quinn doesn't, Burris is probably toast.

by 30000Fine 2009-05-03 08:29AM | 0 recs
Re: Wish list for Justice Souter's replacement

Your list is the correct approach.

by bruh3 2009-05-02 09:25AM | 0 recs
Re: Wish list for Justice Souter's replacement

Folks.  Barack Obama is gonna have plenty of opportunity to name whoever he wants.   If certain interest groups don't get their desired candidate now.  Whenever Stevens and/or Ginsberg retire, Obama can still name the desired candidate at that time. I am sure Obama will get the opportunity to name at least 3 Justices during his term.

I think the fact that Souter is a liberal allows Obama alot of leeway in nominating whoever he wants. Republicans are not gonna obstruct for the simple fact that they don't have the votes to do so.  Obama essentially has 60 votes at least.   Secopndly,  regardless of who Obama nominated to replace Souter.   It does not alter the ideology shakeup of the SCOTUS.   We still have 4 radical conservatives(Roberts, Alito, Thomas, Scalia) and we still have 4 liberals(Ginsberg, Stevens, Breyer, and whoever Obama nominates).

The key is staying on the good-side of Justice Kennedy

If Kennedy or a conservative were ever to retire, then we could get the popcorn ready as the GOP would have something to say under that situation.

by newmexicodem 2009-05-02 12:44PM | 0 recs
Re: Wish list for Justice Souter's replacement

You're speaking out of both sides of your mouth with regard to your second point.  I'm as aware as anyone else that white men have had plenty of undeserved advantages, but two wrongs don't make a right.  If the best candidate (and I have no idea how one could choose one best candidate out of the hundreds of possibilities, but work with me here) is a white male, he should be nominated.

by KTinOhio 2009-05-02 09:08PM | 0 recs
Re: Wish list for Justice Souter's replacement

Ah... but all things being equal, there are plenty of non-white males as qualified or more so than their white male counterparts.   Since that exists, there is no issue with picking a woman or a person of color or both.  

by 30000Fine 2009-05-03 08:33AM | 0 recs
Re: Wish list for Justice Souter's replacement

I strongly agree w/desmoindem's criteria, with the following amendments:  the nominee should be young--under 50--and willing to commit to remaining on the Court for many years; and the nominee should be liberal.  No more moderate nominees from the Dems, when the Republicans choose only hard right nominees.  I agree the nominee should be a woman and/or black or Hispanic.  And once the Republicans inevitably oppose the nominee, the Democrats should play the race or gender card, just as was done for any minority that the Bushies nominated for anything.

by philwino 2009-05-02 11:47PM | 0 recs
Yes, you hate to play politics with this...

But how much more lovely could it get to see Republicans oppose Sotomayor...

They have just about written off the latino vote anyway, with their immigration bias, NOW let's see them oppose the first Hispanic Scotus candidate..

With, as you say, a rags to riches story made for the press to gush over.

http://www.nydailynews.com/opinions/2009 /05/02/2009-05-02_bronx_girl_makes_good_ sonia_sotomayor_merits_look_for_us_supre me_court_.html

And, if they play "qualifications," let's just say two words.

Clarence Thomas.

Sotomayor's bonifides makes Thomas's look silly by comparison.

I think, the smart Republicans will politely decline to challenge her, but we have flaming idiots like David Vitter, to put some gasoline under this issue, and piss off the Latino vote for the next 3 election cycles!

by WashStateBlue 2009-05-03 10:04AM | 0 recs


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