Replacing Justice Souter

Legal experts discuss Obama's forthcoming Supreme Court nomination

May 21, 2009

(Page 5 of 9)

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

Replacing David Souter by a (marginally more liberal?) newcomer isn't the main game here. Every few years some new type of legal case arrives with the potential to shake up the old Court line-up. With the federal government rapidly grabbing quasi-executive authority over industries like finance and auto production, will—and should—the Court's conservatives uphold as an ideal the importance of deferring to the elected branches?

Walter Olson is a contributing editor at Reason magazine and a senior fellow at the Manhattan Institute. His most recent book is The Rule of Lawyers. He blogs at Overlawyered.com.

Roger Pilon

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

To fill a Supreme Court vacancy, 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. Unfortunately, that understanding has been out of fashion for some time, especially in the legal academy, and the president is nothing if not in step with the times.

Who will Obama nominate and why?

One can only speculate about who the president will nominate, but based on his record of legal appointments to date he may nominate someone from or with a strong connection to the academic world. One senses that he conceives of law as an instrument of policy, a vehicle through which to accomplish grand social ends, quite apart from any restraints the Constitution may place on such social engineering. If so, he would like to have a Court that facilitates rather than frustrates such endeavors.

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

There is a place for empathy in the law and in adjudication insofar as it connotes a capacity to see things through the eyes of others and an appreciation for the full richness of the human experience, in contrast to an understanding that may be narrower, wooden, or otherwise lacking in what the ancients called "wisdom." But insofar as the term implies prejudice for one side or the other in a legal dispute it amounts to putting a thumb on the scale of justice and is thus inconsistent with the rule of law and impartial adjudication.

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

Here again one can only speculate about the Court's docket over the next three years, but the sheer political activism of the Obama administration, especially in the marketplace, will surely bring economic liberty cases to the fore, including preemption cases as federal law seeks to supplant state law in various domains. Then too the Court in the past few years has waded into War on Terror questions of a kind that used to be left mainly to the political branches, crafting anything but a clear body of rules in the process, the very prescription for future litigation. Finally, unless one of the conservative seats is vacated, the Court will likely remain the Roberts Court for some time, which portends a continuing interest in narrower, technical cases rather than the flashier kinds of cases earlier Courts often looked for.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato's Center for Constitutional Studies.

Glenn Reynolds

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|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.

Scarpe Nike Italia|8.9.11 @ 5:05AM|#

is good

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