Obama's great Supreme Court opportunity
The Oregonian editorial board
Monday May 04, 2009, 4:52 PM
Partisans on the far left hope President Barack Obama will pick a dependably liberal jurist as his first Supreme Court nominee. Those on the far right hope he'll steer more toward the center.
They are resigned to the probability he won't choose a conservative of their liking, but they figure a centrist justice might swing to the right now and then -- and maybe even turn out to be a closet conservative in the same way Justice David Souter surprised people with an unanticipated liberal bent.
Thus Souter's impending retirement hands the president two enormous opportunities. One, of course, is the chance to replace the 69-year-old Souter with a younger justice who could help shape the court for decades to come. And the other is the chance to break the cycle of what might be called "Souterization" -- Supreme Court appointments aimed at preventing the confirmation of "stealth" candidates who reveal unexpected legal colors on the court.
That's been the modern trend. It's why the current Supreme Court is composed entirely of former federal appeals court judges. All of them came with judicial records -- paper trails that presidents relied on as gauges of how the candidates might rule on such hot-button issues as abortion, civil rights and the death penalty.
President George H.W. Bush thought he had chosen a reliably right-leaning jurist when he nominated Souter in 1989. To the consternation of conservatives, though, Souter voted regularly with the court's liberal bloc, and now Obama is under pressure from the left to avoid such a miscalculation in reverse.
What today's court needs most, however, is diversity. And by that we don't necessarily mean a woman or a Hispanic as so many voices are demanding.
Supreme Court scholars lament that today's court is perhaps the most homogenous and insulated in American history. None of the justices has ever held elective office, three have never been in private practice and all but one of them got their law degrees at Harvard or Yale.
Historically, however, the Supreme Court has been populated with accomplished individuals with broad experience -- former governors, legislators, law professors, Cabinet members and practicing lawyers.
Obama appears to be willing to break from the norm of prior judicial experience. His list of potential nominees is said to include such candidates as Gov. Deval Patrick of Massachusetts, Gov. Jennifer Granholm of Michigan and Janet Napolitano, the former Arizona governor who is now the homeland security secretary.
The president, a former professor of constitutional law, apparently sees the wisdom in casting a wide net. His former colleagues and students say he will probably be more interested in appointing a smart, capable pragmatist than someone who will side consistently with liberals or plug the court's demographic gaps, and that is reassuring.