David Strauss can't bring himself to call his friend and former University of Chicago Law School colleague "Barack" any more.
"I think the President really is not an old-fashioned, civil-rights-era liberal," said Strauss, the Gerald Ratner Distinguished Service Professor at the University of Chicago Law School (must make for a long business card).
I nudged nudged Strauss into playing a popular parlour game: the Supremes Sweepstakes, or speculating about filling a Supreme Court vacancy. And though a lousy economy leaves less leisure time to so amuse oneself, the retirement of Justice David Souter inspires resumption of this mostly indoor sport.
Rather than check with Las Vegas oddsmakers, it seemed more useful to track down Hyde Park heavyweights, namely folks at the law school where Barack, ah, President Obama taught.
The university is the intellectually dynamic and rigorous centerpiece of the Hyde Park neighborhood where Obama lives when not hanging at 1600 Pennsylvania Ave. So what do three longtime .300 hitters at the law school think are his relevant considerations? And what about the business of "real world" experience and one particular former female colleague of Obama who keeps getting mentioned as a possible choice; all the more as the media keep repeating what the media have already speculated?
Strauss knows the process. He was special counsel to the Senate Judiciary Committee in connection with the nomination of, yes, David Souter of New Hampshire. And he's argued 18 cases before the Court. He's a co-editor of the Supreme Court Review. His take:
"1. This President--like Clinton, but unlike the Republicans--doesn't have a Supreme Court-centered agenda. He's not trying to move the Court in a dramatic new direction or to get the Court to make important changes in society."
"There's a contrast with the Republicans (at least the wing of the party that cares the most about the courts), who would like to see dramatic movement on abortion, school prayer, government aid to religion, affirmative action, property rights, maybe federalism and Congressional power. This isn't a partisan point--in the '60s the Democrats had a Court-focused civil rights agenda. But they don't now.
"So this means the President has no reason to invest substantial political capital in an outspokenly liberal nominee. His legislative agenda, by contrast, is of course extremely ambitious, and that's where he'll put his chips.
"2. Along the same lines, I think the President (I can't bring myself to call him Barack any more) really is not an old-fashioned, civil-rights-era liberal. When he presented himself during the campaign as having transcended that era, that wasn't just for show--it's really him. Part of that is: he did not grow up thinking of the federal courts as the great hope of progressives. His background is not in, for example, public interest litigation for the NAACP Legal Defense Fund. It's in community organizing and, of course, politics, and he thinks of the political process, not the judicial process, as the main way to accomplish his goals. So again he won't think of this as an agenda appointment, not in the substantive sense. He will see it as a chance to set a new tone in judicial appointments, or make the Court more inclusive--something like that. As for which of those things he'll try to do--I have no idea."
Geoffrey Stone, the Edward H. Levi Distinguished Service Professor and former dean of the law school, proceeds with the initial assumption that Obama goes for somebody with a "high level of intellectual ability. As a professor of constitutional law, Barack fully understands the complexity of the job and the importance of analytical fire-power both to do the job well and to persuade colleagues. He will want his legacy to be justices of whom he can be proud, and a very high level of intellectual ability is certainly a prerequisite to that."
Fine. What about his/her politics? Will the fears of Fox News Channel and Rush Limbaugh be borne out via an unabashedly left-wing pick?
"Moderate liberal," says Stone. "Certainly, Obama will want his nominee at the very least to be as liberal as Souter, Breyer, Ginsburg and Stevens. He will not want to make an error on this, and therefore he will appoint someone whose record is well established. He will not want to appoint a justice who later turns out to be conservative," a reverse Souter.
"The terms 'conservative' and 'moderate liberal' are not self-defining, of course," Stone says. "But at their essence for Barack, I suspect, is his continuing reference to empathy. He wants to appoint a justice who understands that a unique role of the courts in our system of government is to be especially attentive to the interests of the unrepresented, the oppressed, the political and religious dissenters, those accused of crime, and minorities who have traditionally lost out in the political process."
"Personally, I would like to see Barack appoint a "true liberal," like William Brennan or Thurgood Marshall, because I think the Court desperately needs such a voice. But my guess is that at this point in time Barack will be reluctant to spend the political capital that might be needed to override the opposition to such a nominee. The difference, in my view, between what I'm calling a moderate liberal and a true liberal is that the former is incrementalist whereas the latter is much bold."
Stone thinks an Obama pick would exhibit a strong voice about the court's role. "For several decades, conservatives had articulated and promoted a conservative vision of the proper exercise of the judicial power, using such catch-phrases as 'originalism' and 'strict construction.' Although there is much less to these notions that people think, conservatives have quite effectively changed the terms of the debate about constitutional law since the Warren Court era. For several decades, progressives have struggled to counter this public relations onslaught, but largely without success. There is no clear consensus about what a "liberal" or "moderate liberal" justice does, other than to decide individual cases in a particular way. The Court and the nation badly need a justice who can articulate a progressive view of constitutional interpretation, both to counter the conservatives on the Court and to change the terms of the national debate. Barack will want a justice who can do this."