"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
The university is the intellectually dynamic and rigorous centerpiece of the
Strauss knows the process. He was special counsel to the Senate Judiciary Committee in connection with the nomination of, yes, David Souter of
"1. This President--like
"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."
Finally, there's diversity. Among those who satisfy the initial three criteria, "Barack will want to appoint a justice who adds diversity of experience and perspective within the Court. This might mean a woman, a Hispanic, an African-American."
Richard Epstein, whose politics are distinctly to the right of Stone's, conceded, that "I am never sure on this kind of question. It is the usual debate between wanting to shake things up and wanting to avoid a real fight. The obvious names are the likely sources. I don't see any dark horses. My view is strongly in favor of judicial experience. The exception is not for academics, but for persons with real world experience. The one name on the list that meets this the best is Diane Wood, of whom I think exceedingly well, as does everyone else who knows her."
"Put otherwise, I have not heard a negative word about her work on the bench during her term of office, which started in 1995."
Diane Wood. Hmmmm.
For sure, the female possibilities include Wood, a former Obama law school colleague who sits on the federal appeals court in
(At this point, one might note that it's a function of declining local journalism that one probably cannot find a single reporter or editor at a mainstream
Jan Crawford Greenburg, a friend and former Chicago Tribune colleague of mine, posited an interesting thesis on her ABC News blog. It involved Obama's supposed desire for somebody who understands the "real world." Her notion led her to the notion of a candidate who's lived "the experience of juggling the stresses of work and home, while dealing with demanding and irrational personalities of juveniles."
Wood has raised three children while maintaining demanding jobs. As noted by Jan, herself a
That analysis is intriguing, and one can't dispute how Wood has accomplished so very much while raising three children. Or that, say friends of mine who know her well, that she's apparently a wonderful human being.
But does juggling three kids, and dealing with juvenile craziness, necessarily segue into holding your own with tough intellectual adversaries? I don't think that one follows the other, so that if an Obama consideration is standing up to Antonin Scalia, Clarence Thomas, John Roberts and Anthony Kennedy, I might dispense with the raising of three kids.
Come to think of it, there may have been few judges as removed from many "real world" realities than Posner when appointed in 1981. I profiled him shortly thereafter for American Lawyer magazine and found vivid examples of being out of touch with how people, and even practicing lawyers, were leading their lives. He seemed almost a caricature of the Ivory Tower denizen, operating at a cerebral 30,000 feet.
Fast forward nearly 30 years and only a fool would argue that he's not been a brilliant, if controversial, jurist. You would not have done better with a "real world" savvy union organizer, pediatric oncologist, social worker or shrink. Indeed, Obama was once quoted saying Posner would be the judge he'd most want to argue before.
But I would not dispense entirely with what appears to be the fact that Wood has done well on a court with two guys, Posner and Easterbrook, who have more combined mental firepower than, say, Scalia and Thomas. As Stone notes, the life experience speaks to character and determination. But even if it doesn't speak to dealing with strong-willed conservatives, "The fact that Frank [Easterbrook] and Dick [Posner] both have great respect and admiration for her as a judge speaks volumes" about her talent.
Might her age, 58, be a disincentive? There surely must be the urge to make a truly longterm impact. One can imagine political advisers wondering, "Might there be somebody a bit younger?"
And, you can bet, there are multiple prospective candidates, whose names have not surfaced, being quietly and very quickly vetted. I'll wager that there's at least one in the building where Wood works, another female, who's being vetted (with the likely and discreet help of a local law firm) without any publicity so far.
For now, outsiders afflicted with humility might agree with Strauss: We really have little idea about the ultimate choice, even if we possess a fair inkling about the path Obama will take to him or her.
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