My ideal candidate to replace Justice John Paul Stevens (third from left in photo) on the Supreme Court is a brilliant, young, Asian-American Protestant lesbian with finely honed negotiating skills acquired perhaps in the legislature, but not on the bench. We don’t live in an ideal world, of course, so it is exceedingly unlikely that we’ll see all these qualities united in one person. Let’s consider each on its merits.
Diversity matters. Speaking of her own contribution to the composition of the court, Justice Ruth Bader Ginsburg said that “women bring a different life experience to the table. All of our differences make the conference better.” In 21st-century America, where women constitute the majority of the population, of the work force, and of college graduates, why should we remain a small minority in the highest court of the land? In this regard, we lag behind other democracies, such as Canada, where four of the nine justices are women, including the chief justice.
The next Supreme Court justice doesn’t necessarily have to be Asian-American or Protestant or gay, but adding the collective experience of significant groups cannot but enrich the conversation. Roman Catholics now dominate the court, and the other two justices are Jewish. Obama has made overtures to the gay community; the majority of Americans are comfortable with their gay neighbors. Would social conservatives in the Senate go so far as to reject someone because of sexual preference? I suppose they might, but probably not openly. That would fall to Glenn Beck and Rush Limbaugh.
That the nominee will be brilliant goes almost without saying. The president can be relied upon to choose someone who will meet his own exacting standard. Many argue that universities other than Harvard, Yale and Princeton should be represented. I suppose that’s true, but I don’t feel strongly that institutional diversity should be an issue. All the current justices studied law at either Yale or Harvard. If it were true that those schools produce people who think alike, we wouldn’t see the polarity that exists in the court today. (Full disclosure: I hold advanced degrees from Yale and another Ivy.)
All of the present justices were appellate judges when nominated. Justice O’Connor demonstrated the value of having someone who wasn’t previously a judge: her legislative experience enabled her to negotiate compromises. Justice Stevens will be missed for that very reason. He was the one who found ways to persuade Justice Kennedy to throw his swing vote in with the liberals to win a majority.
The nominee should be young because appointment to the Supreme Court is for life. Presidents use their appointees to cement their legacy, trying to choose individuals who share their ideology. I know that’s become a dirty word, but right now there’s a very bright line separating conservative and progressive issues. It is the president’s right to nominate someone who believes in the same causes he (or she) does. At least initially. Justices Stevens and Souter, both appointed by Republican presidents, severely disappointed the expectations of conservatives.
Choosing a nominee who is not already a judge has the advantage of giving less fodder to the opposition, because she has no opinions available for scrutiny. On the other hand, she could turn out to be something other than the president expected. Under Chief Justice Warren Burger, who was appointed by Nixon, the court handed down controversial and transformative decisions like Roe v. Wade.
The president will also have to take into account political consequences that have nothing to do with the confirmation process. Sen. Amy Klobuchar (D. MN), for example, was under consideration until she removed her name from the list a week or so ago: Minnesota has a Republican governor who would replace her with a senator from his own party.
One thing is certain: whoever Obama nominates, the opposition is sure to dig in its heels and give him a hard time. So he might as well go for it and the choose the nominee he really wants. Trying to make a choice that will please everyone is an exercise in futility.