Replacing Justice Souter

Legal experts discuss Obama's forthcoming Supreme Court nomination

May 21, 2009

With Supreme Court Justice David Souter set to retire next month at the end of the Court's current term, President Barack Obama faces one of the most important decisions of his tenure. Reason.com asked a panel of leading legal scholars and commentators for their views on what sort of justice Obama should—and will—nominate to take Souter's place.

Our panelists are Radley Balko, Alan Gura, Wendy Kaminer, Manuel Klausner, Judge Andrew Napolitano, Walter Olson, Roger Pilon, Glenn Reynolds, Damon W. Root, Ilya Shapiro, Harvey Silverglate, Ilya Somin, and Jacob Sullum. Their answers are below.

Radley Balko

Who should Barack Obama nominate for the Supreme Court and why?

Sen. Russell Feingold (D-Wis.). If we can't get a libertarian, let's at least hope for a civil libertarian. Campaign finance reform is obviously Feingold's blindspot (and it's a big one, even for a leftist), but he's one of the few members of Congress from either party who has stood up for privacy and personal freedom since September 11.

Who will Obama nominate and why?

I hope I'm wrong, but my bet is with Solicitor General Elana Kagan. Kagan won over Republicans at her hearing earlier this year with her consistent support for broad executive power to fight the war on terror. Kagan gives Obama the best chance of avoiding an extended confirmation fight while still getting someone on the Court who shares his broader worldview.

Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?

On criminal justice and civil liberties matters, that sentiment would seem to make one inclined to adopt a presumption of liberty over government power, so in that context I have no problem with it, and don't think it would conflict with a justice's primary duty to uphold the Constitution (which, of course, delegates a limited set of government powers, leaving all other rights and power with the people). But it seems likely that Obama's referring more to policies like wealth redistribution and the adjudication of private lawsuits, which of course is much more problematic.

What issue(s) will dominate the court over the next three years and why?

We'll likely see more cases testing the limits and extent of executive power with respect to the war on terror. There's some speculation that Chief Justice Roberts wants to eliminate or severely limit the scope of the exclusionary rule in Fourth Amendment cases. I'd also expect the Court to start taking on cases looking at what rights and privileges we should afford to illegal immigrants as challenges to various crackdown policies across the country make their way through the appeals courts.

Radley Balko is a senior editor at Reason magazine.

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Alan Gura

Who should Barack Obama nominate for the Supreme Court and why?

It's silly to expect an unabashed liberal like Obama to nominate a justice in the mold of Antonin Scalia or Clarence Thomas. The president should be true to his conscience and give the electorate what they bargained for, by nominating a liberally-minded jurist with some meaningful practical experience in the law. Yet in doing so, Obama should seek a liberal liberal, one whose liberalism is reflected in a healthy skepticism of authority and respect for the dignity of the individual rather than in obesience to the regulatory state.

Who will Obama nominate and why?

Comments

|5.21.09 @ 12:20PM|#

Janice Rogers Brown. She's a black woman, and that's all that matters. She's also good on some issues that some Democrats like. No, really!

[While being dragged away by the Stasi] No, really, it's okay! Appoint her, damn you, appoint her!!! Don't tase me, bro'!

Face the Muzak|5.21.09 @ 12:21PM|#

Maybe you guys could get an interview with Jan Crawford Greenberg. Now there's someone who understands the SCOTUS.

SpongePaul|5.21.09 @ 12:30PM|#

Too bad Judge Napalataniano or however you spell it is not in the running, he would get most things right.

|5.21.09 @ 12:38PM|#

Confident predictions:

(1) Obama's nomination will be catastrophically bad on limited government issues.

(2) The Republicans will makes fools of themselves and squander an opportunity.

(3) Obama's nomination will be approved.

|5.21.09 @ 12:45PM|#

What's to discuss? We are getting ass raped by progressively bigger cocks.

The left/right makeup of the SCOTUS is meaningless, as they both favor fucking us.

|5.21.09 @ 1:04PM|#

The nominee should not be one who is an Ivy grad. He or she should have no government employment in their background.

Warty|5.21.09 @ 1:13PM|#

He or she should have no government employment in their background.

He should also smell like rainbows and shit out Twinkies.

|5.21.09 @ 1:14PM|#

Female. Probably not white. Legal expoerience and judicial philosophy will only be considered by the Obama staff after that.

Joel|5.21.09 @ 1:16PM|#

...their views on what sort of justice Obama should-and will-appoint to the Court...

Both sorts are probably pretty well known, in general terms. They're way not the same list.

|5.21.09 @ 1:18PM|#

The left/right makeup of the SCOTUS is meaningless, as they both favor fucking us.

And in general, in the confirmation process the more libertarian a Republican-proposed candidate seems, the harsher the confirmation. Big government conservatives are always more preferable to Democratic Senators.

In the past, Republicans really haven't fought Supreme Court nominations. Justice Ruth Ginsburg was confirmed 96 to 3; Stephen Breyer 87 to 9. That almost qualifies as the Republicans getting it right from a libertarian point of view; to me, Breyer is almost the anti-libertarian justice. He's certainly the anti bright line, pro "balancing" pragmatic justice. Ginsburg is considerably better on civil liberties than Breyer.

Barry Loberfeld|5.21.09 @ 1:20PM|#

What we don't need from Obama: another Breyer:


To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," Breyer reveals that its purpose was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible?

At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when [E.J.] Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution -- who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms -- as his alter ego -- the monstrous presence of ...

READ "The Strange Case of Justice Breyer and Mr. B."

|5.21.09 @ 1:30PM|#

Warty-

If one smells like rainbows, one should not be shitting twinkies.

|5.21.09 @ 1:33PM|#

What's to discuss? We are getting ass raped by progressively bigger cocks.

Well, the color of the cock - I expect the professional jounalists and chattering class to discuss that for endless and painful hours about if the cock is brown enough. What about strap ons? I've heard that they let girls on the court now too.

Actually discussing - and actually placing primary importance on - Liberty? fuck that noise.

|5.21.09 @ 1:34PM|#

File under duh:

Most of us here would be happy if one of us was nominated and confirmed, narcissism of minor differneces aside (to borrow a phrase recently discussed).

kinnath|5.21.09 @ 1:34PM|#

I still betting on an Asian Lesbian . . . .

Warty|5.21.09 @ 1:35PM|#

libertymike - I was offered a deep fried chocolate covered Twinkie the other day. I passed.

Zeb|5.21.09 @ 1:40PM|#

"permits citizens to govern themselves"

I think he meant "govern each other". You don't really need a government to govern yourself, do you?

|5.21.09 @ 1:46PM|#

Check out this Onion-style parody of Obama's criteria for picking judges:

http://optoons.blogspot.com/2009/05/obama-unveils-new-statue-at-us-supreme.html

Warty|5.21.09 @ 1:51PM|#

It's trying too hard, Read.

|5.21.09 @ 2:00PM|#

We need one justice who represents the 10% of Americans who are one stripe or another of libertarian. Affirmative action at work, people!

Xeones|5.21.09 @ 2:11PM|#

Amen, Pro Lib! I hereby nominate Radley Balko. Yo, fuck "new professionalism."

Fist of Etiquette|5.21.09 @ 2:55PM|#

Much as I disdain identify politics, I would urge him to nominate a very smart, scholarly, unabashedly liberal, young enough woman, like Kathleen Sullivan.

Kaminer's disdain for identity politics couldn't be characterized as fanatical, I guess. That's a bullshit qualifier if I've ever seen one.

proud libitard|5.21.09 @ 3:47PM|#

politics be damned...we need a hotty!

Like this lady http://www.tvweek.com/blogs/cristina-perez/2008/10/23/JudgeCristinaSmall.jpg

Kreel Sarloo|5.21.09 @ 4:06PM|#

Obama will follow the james Watt principle:

"a black, a woman, two Jews and a cripple."

Noone will admit it and Watt got a lot of flak for saying it, but that's pretty much been the formula for quite a while now.

Kreel Sarloo|5.21.09 @ 4:15PM|#

And naturally, Napolitano is out.

With Scalia and Alito the Italian quota is full.

|5.21.09 @ 4:47PM|#

Nominate lonewacko.

It would sure make the SCOTUS a hell of a lot funnier.

|5.21.09 @ 4:52PM|#

Is it just me, or is there something suspicious about a panel of 13 experts two of whom are named "Ilya"?

Randy|5.21.09 @ 6:01PM|#

RL -- It's just you.....

Telly|5.21.09 @ 8:24PM|#

He'll nominate Michelle. She's been bitching about the first lady not being a paid job title, you know.

Judge Dredd|5.22.09 @ 12:50AM|#

I am the law!!!!

Craig|5.26.09 @ 7:28PM|#

President Obama should nominate a person with proven experience and integrity who has also demonstrated a deep understanding of the Constitution as a document designed to secure liberty through limited government.

My thoughts exactly, but I don't expect him to nominate the person who best fits that description: Ron Paul.

Andrew Napolitano would be a good second choice, though, and younger than Paul.