Replacing Justice Souter

Legal experts discuss Obama's forthcoming Supreme Court nomination

May 21, 2009

(Page 2 of 9)

As a former professor of constitutional law, Obama doubtless takes his Supreme Court selection as seriously as any of his predecessors, and has unusually precise ideas of what he wants in a justice. Look for a nominee whose background and beliefs closely match Obama's: an academic, or at least a judge or practitioner, who is identified with an Obama-style jurisprudence. Judge Sotomayor or Dean Erwin Chemerinsky might be logical Obama picks; a pure politician is less likely.

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

Conservative attacks on Obama's desire for "empathetic" judges miss the mark. Although empathy is a more important requirement of lower court judges more frequently called upon to make discretionary calls, it is still an important trait in Supreme Court justices whose opinions define the contours of our individual rights. But Obama's version of empathy appears inappropriately geared toward avoiding hard-luck outcomes for favored people, as opposed to empathy for the legitimate interests of individuals without regard to personal circumstances or popular politics.

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

The explosion in the regulatory state, initiated during the late Bush regime and continued by the current administration and Congress, will test the limits of constitutional government. It is fair now to ask whether there exist any inherent limits to federal power, or whether the government can do absolutely anything it wishes in the economic realm. I fear that whatever else they might get right, Obama's nominees might get these questions wrong.

Alan Gura successfully argued District of Columbia v. Heller before the United States Supreme Court. He is a partner at Gura & Possessky.

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Wendy Kaminer

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

Much as I disdain identity politics, I would urge him to nominate a very smart, scholarly, unabashedly liberal, young enough woman, like Kathleen Sullivan. I want a justice who will can stand up to Scalia, Alito, and Roberts, and I want Justice Ginsburg to have some company.

Who will Obama nominate and why?

My guess is (and I can only guess) a centrist female—I have no idea which one.

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

Yes, and I find it hard to imagine an intelligent, good faith objection to choosing judges who remain cognizant that laws have actual consequences for actual human beings. You can see the injustices and idiocies of empathy's absence in the Court's crabbed and inhumane approach to claims of cruel and unusual punishment, which in the Court's view does not include life sentences for petty, non-violent offenses, like shoplifting, under three strikes laws (see the 2003 cases of Ewing v. California and Lockyer v. Andrade) or a 200-year prison sentence imposed on a first time offender who privately downloaded images of child porn (see Berger v. Arizona, 2007).

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

I don't know what will dominate, but I expect courts will continue to grapple with national security cases and post 9/11 abuses (how can they not?); and I expect that new technologies will continue inspiring efforts to impose new restrictions on speech.

Wendy Kaminer is a lawyer and former board member of the American Civil Liberties Union. She currently serves on the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America. Her latest book is Worst Instincts: Cowardice, Conformity and the ACLU.

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Manuel Klausner

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.