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.

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President Obama On David Souter And His Coming SCOTUS Decision

President Obama surprised Robert Gibbs by replacing him at the podium a few minutes ago to make a statement himself regarding Justice Souter's decision to step down and what his process will be for choosing a replacement. Here's what he said:

The process of picking someone to replace Justice Souter is among my most serious responsibilities as President. I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone that understands that justice isn't about some abstract legal theory or a footnote in a casebook, it is also how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcomed in their own nation. I view that quality of empathy of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time. As I make this decision, I intend to consult with members of both parties across the political spectrum and it is my hope that we can swear in our new Supreme Court justice in time for him or her to be seated by the first Monday in October when the court's new term begins.

A couple things to take away from this statement. First is the progressive frame advanced in the statement that justice comes out of empathy. Second is Obama's pledge to seek someone "who brings a thoughtful understanding of how to apply [constitutional values] in our time." In other words, the president wants someone who sees the constitution as a living breathing organism. All good.

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Dear Justice Souter

Thank you for waiting.

Thank you.

Consider this an open thread...

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Potential Replacements for Souter

Nearly two years ago, the good folks at SCOTUS Blog put together a list of potential Supreme Court nominees for a Democratic President (before there was even a Democratic nominee!). Here's what they came up with:

Given those reactions, I am revising my short list of potential appointments for the first seat to: [Solicitor General Elena] Kagan, [Georgia Supreme Court Leah Ward] Sears, [Second Circuit Court of Appeals Judge Sonia] Sotomayor, [Ninth Circuit Cour of Appeals Judge Kim McLane] Wardlaw, and [Seventh Circuit Court of Appeals Judge Diane] Wood. The additional names for later seats are: [Michigan Governor Jennifer] Granholm, [D.C. Court of Appeals Judge Merrick] Garland, [South Florida District Court Judge Adalberto] Jordan (assuming an immediate elevation to the Eleventh Circuit), [Massachusetts Governor Deval] Patrick, and [Secretary of the Interior Ken] Salazar.

As for the particular predictions (which truly are wildly speculative), here is my thinking. A Democrat will want to correct the gender imbalance on the Court immediately. There is no reason to defer a Hispanic appointment with two highly qualified Hispanic women available. So the first seat will go to Sotomayor (to whom I now lean) or Wardlaw.

MyDD Blog Talk Radio host Adam Conner adds the name Sandra Day O'Connor (though at least somewhat sarcastically, presumably).

For my money -- and I have written about this topic recently on this site -- I think it is incumbent on President Obama not only to name a very capable nominee, but also a young one to combat the growing trend of GOP Presidents to appoint (relatively) young ardent conservatives to the Court.

What's more -- and I have also written about this topic before, though a long while ago -- I think President Obama would be well served by looking beyond the list of jurists and academics by also considering sharp legal minds with legislative experience. There is definitely historical precedent for such a move. As of the last time I checked the numbers back in October 2005 (so it would be slightly different with the appointments of John Roberts and Samuel Alito, but not too different), two-fifths of all Supreme Court justices had spent time in a legislature, including one-fifth who had served in Congress.

Who would you like to see on the Supreme Court? What qualifications and values should President Obama's nominee embody?

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Justice Souter to Retire from the Supreme Court

Earlier today I asked Is Souter Thinking About Leaving the Court? Per NPR, the answer is yes.

NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the court's current term.

The court has completed hearing oral arguments for the year and will be issuing rulings and opinions until the end of June.

Souter is expected to remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the court reconvenes in October.

More as we hear it...

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