Replacing Justice Souter
Legal experts discuss Obama's forthcoming Supreme Court nomination
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Who will Obama nominate and why?
It will likely be one of three consensus front-runners: Elena Kagan, Sonia Sotomayor, and Diane Wood. If I had to guess, I would predict Kagan; she is younger than Wood, much more capable than Sotomayor, and would avoid any significant confirmation fight. Kagan would also be a reliable liberal vote, and (based on her record as dean of Harvard Law School) a skillful coalition-builder on the Court.
Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?
No, the job of a Supreme Court justice is to apply the text and original meaning of the law irrespective of whether he "identifies" with the litigants or not. Even if judges should take policy consequences into account, "empathy" with individual litigants can easily blind them to the broader, systemic effects of their rulings. For example, upholding laws that violate constitutional property rights may help individual "downtrodden" litigants, but often actually hurts the poor overall by curtailing the availability of low-cost housing.
What issue(s) will dominate the court over the next three years and why?
It's very hard to predict, because much depends on which cases happen to make their way through the lower courts. However, it's safe to say that the Court will continue to have extensive business law, regulatory, and criminal law dockets. In terms of major constitutional issues, it's likely that the Obama administration's revisions of Bush's War on Terror policies will lead to various legal challenges, some of which will probably get to the Supremes.
Ilya Somin is an assistant professor at George Mason University School of Law.
Jacob Sullum
Who should Barack Obama nominate for the Supreme Court and why?
It would be nice to see a nominee with some classically liberal inclinations, combining a respect for property rights with a commitment to freedom of speech, for example, or taking seriously both the right to arms and the guarantee against unreasonable searches and seizures. Unfortunately, the judges who meet that description (the 9th Circuit's Alex Kozinski, for example) tend to be viewed as conservatives and therefore would be anathema to Obama. Beyond that, there is something to be said for picking a trial judge, a scholar, a practicing lawyer, or even a politician just for the sake of diversifying the outlook of a Supreme Court that now consists entirely of former appellate judges.
Who will Obama nominate and why?
I have no special insight into his political calculations, although I gather it will be a woman.
Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?
Obama's remarks on this subject can be interpreted in a way that
is unobjectionable. But I fear that when he elevates "empathy"
above "some abstract legal theory," he means judges should to some
extent be guided by their feelings, as opposed to a careful,
dispassionate, and intellectually honest reading of the law. We
don't want justices who dress up their personal policy preferences
as constitutional interpretation, or who side with a particular
party just because they feel bad for him. As it says in Leviticus,
"You shall do no injustice in judgment; you shall not be partial to
the poor nor defer to the great, but you are to judge your neighbor
fairly."
What issue(s) will dominate the court over the next three years and
why?
Many of the issues that came up in connection with the Bush administration's anti-terrorism policies have not been fully resolved and probably will come to the Court in some form, including the due process rights of detainees, the extent of executive power in the area of national security, and the application of the Fourth Amendment to surveillance aimed at preventing terrorist attacks. It seems certain that the Court will hear a First Amendment challenge to the Federal Communications Commission's restrictions on the content of over-the-air programming, which will give it an opportunity to renounce the misbegotten and increasingly quaint constitutional distinction between broadcasting and other media. Now that the Court has said the Second Amendment guarantees an individual right to arms, it will have to explain what that means when applied to forms of gun control that fall short of a complete ban on keeping firearms in the home for self-defense.
Jacob Sullum is a senior editor at Reason magazine.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.
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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'! -
Maybe you guys could get an interview with Jan Crawford Greenberg. Now there's someone who understands the SCOTUS.
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Too bad Judge Napalataniano or however you spell it is not in the running, he would get most things right.
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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. -
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. -
The nominee should not be one who is an Ivy grad. He or she should have no government employment in their background.
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He or she should have no government employment in their background.
He should also smell like rainbows and shit out Twinkies. -
Female. Probably not white. Legal expoerience and judicial philosophy will only be considered by the Obama staff after that.
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...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. -
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. -
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." -
Warty-
If one smells like rainbows, one should not be shitting twinkies. -
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. -
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). -
I still betting on an Asian Lesbian . . . .
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libertymike - I was offered a deep fried chocolate covered Twinkie the other day. I passed.
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"permits citizens to govern themselves"
I think he meant "govern each other". You don't really need a government to govern yourself, do you? -
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 -
It's trying too hard, Read.
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We need one justice who represents the 10% of Americans who are one stripe or another of libertarian. Affirmative action at work, people!
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Amen, Pro Lib! I hereby nominate Radley Balko. Yo, fuck "new professionalism."
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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. -
politics be damned...we need a hotty!
Like this lady http://www.tvweek.com/blogs/cristina-perez/2008/10/23/JudgeCristinaSmall.jpg -
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. -
And naturally, Napolitano is out.
With Scalia and Alito the Italian quota is full. -
Nominate lonewacko.
It would sure make the SCOTUS a hell of a lot funnier. -
Is it just me, or is there something suspicious about a panel of 13 experts two of whom are named "Ilya"?
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RL -- It's just you.....
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He'll nominate Michelle. She's been bitching about the first lady not being a paid job title, you know.
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I am the law!!!!
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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. -
is good