Who Should Obama Nominate to Replace Souter? – It’s Not Who You Think

Who should Obama nominate to replace David Souter on the Supreme Court? In an earlier post, I hinted that political scientists have actually studied this question quite extensively, and their conclusions are not necessarily what one might expect.  Many political scientists believe there are compelling reasons why Obama ought to avoid nominating someone who is currently a sitting jurist, such as an appellate judge at the federal level, and instead should pick a politician – preferably someone who has a background in elected politics – as the next Supreme Court nominee.  It is a position that I share.

Why do I advocate nominating an elected politician rather than a “professional” jurist?  For reasons that my former Harvard colleague Gordon Silverstein cogently spells out in this recent TNR piece.  As Gordon argues, “While the instinct in choosing a justice for the highest court in the land is to find the most qualified judge or legal scholar, there is a powerful case to be made that the court very much needs an experienced elected official among its ranks. Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century.”

A more politically-savvy court, Gordon argues, would provide at least three benefits. First, it would reduce the number of split-decisions the Court renders because politicians are adept at using compromise and bargaining to achieve consensus. That, in turn, would provide more legal “heft” to Court decisions.  Second, the Court’s decisions would be less likely to be cast in legal jargon centered on abstract theorizing and legal hair-splitting, and more likely to be expressed using easily accessible reasoning that the public understands. Third, justices would be more likely to understand the practical impact of their decisions, particularly as they pertain to implementation.

Gordon acknowledges that a Court dominated by politicians might exhibit weaknesses as well.  In areas involving fundamental constitutional issues, one could argue that the Court ought not to be rendering decisions arrived at through bargaining and compromise.  But this presumes that elected politicians are less capable than professional jurists in recognizing when such rights are at stake.  I’m not convinced this is the case.

Note that the highest Court wasn’t always dominated by legal professionals.  As David Yalof points out, of the 22 Supreme Court appointments made between 1937 and 1967, 12 of them went to individuals in the executive or legislative branches, as opposed to the judiciary. At least three other appointees were political insiders.  Beginning with Nixon, however, presidents have increasingly ignored practicing politicians when making nominations and instead tapped those from the professional judiciary who possess extensive legal training. By my count, of the 19 nominees to the Supreme Court dating back to 1969, almost every one has been a sitting appellate federal judge.

The trend toward nominating professional jurists accelerated in the 1980’s with the increased polarization of Congress, against the backdrop of divided government, and the growing role of interest groups on both sides of the ideological divide in the nominating process. The new, more contentious process was evident beginning with Reagan’s unsuccessful effort to place Robert Bork on the Court.  Yalof argues that the growth of the role of lawyers in the White House and the Justice Department has contributed to this trend as well, as they have provided much of the information on which presidents base their nomination choices. Lawyers, by instinct and training, prefer members of the legal profession.

The result is that Presidents are now encouraged to pick individuals with a strong legal background and relatively non-controversial opinions, rather than a politician who would make an easy target on partisan grounds alone but who, if Gordon is right, might bring real benefits to the Court.

The irony, as Yalof suggests, is that this shift in the type of nominee has made the Court less – not more – willing to defer to elected officials.  As a result, the Court is more likely to be embroiled in legal controversy, which in turn insures that nomination politics are still more controversial, and that the Court’s decisions will continue to be divisive.

Obama has a chance to reverse this trend by nominating an elected official or someone with a practical understanding of politics.  But will he do so?  Publicly, he has expressed agreement with those, such as our own Senator Patrick Leahy, who are pushing for a nominee from outside the “judicial monastery.”  The problem, however, is that Obama’s personal preference to pick someone who “understands that justice isn’t about some abstract legal theory,” is likely to collide with others’ desire to fill the position with someone meeting their own criteria.  Most importantly, as a Democrat facing a Democratically-controlled Senate, he will be under strong pressure to pick a left-leaning judge.  He also will face pressure from those pursuing their own brand of “identity” politics, in the form of a woman and/or Hispanic nominee.   This will make it difficult for Obama to pursue his own preferences, whatever they may be.  And, to date, Obama has shown little interest in spending political capital to change the way Washington works.

If news reports are credible, the short list of candidates is composed primarily, but not exclusively, of individuals who I would characterize as legal professionals.  A partial but by no means exhaustive list initially included Sonia Sotomayor, an Hispanic who currently sits on the U.S. Court of Appeals for the 2nd Circuit; Elena Kagan, the current Solicitor General and formerly dean of the Harvard Law School and Diane Wood, a judge on the 7th Circuit Court of Appeals.  In recent days, however, a couple of politicians, including Homeland Security chief Janet Napolitano and Michigan Gov. Jennifer Granholm, have made the media “possibility” list (as has California Supreme Court Justice Carlos Moreno.)    Of course, it is in the administration’s interest to selectively leak names to curry favor with interest groups, and to keep the media guessing.  Among this group, Kagan has perhaps the most inside connections, and the least visible judicial record.  In short, she fits the mold of recent appointees – smart, and lacking a controversial record of judicial opinions.  She would be the conservative choice and Obama, to date, has shown a propensity for taking the safe route.  However, it may not be the politically feasible choice, given pressure from liberals and Hispanics.

So, who will it be?  Will Obama actually push for real change when it comes to the Supreme Court, and opt for a politician? It is time to give away another “It’s the Fundamentals, Stupid” t-shirt. Send me your nominee, either in the comments section or directly by email.  In the case of ties, the earlier respondent wins.  As always, no wagering allowed, and employees of this blog cannot participate in the contest.

14 comments

  1. Three points:

    First, the recent preference of Presidents for “professional” jurists over other candidates may also have to do with the fact that they do, in fact, have a public record concerning legal issues. This makes it easier to anticipate what kinds of views they will hold on the court, which, due to the life tenure of the justices, is no small thing. Ironically, Justice Souter was chosen by H.W. Bush in part because his record was relatively thin, and this was seen as an advantage going into the confirmation process. The only problem was that he turned out to be a far less conservative justice than Bush and other Republicans anticipated. Souter’s own legacy therefore serves as a warning against choosing candidates with little or no public record.

    Second, while I am extremely sympathetic to your call for justices who are more deferential to the decisions of publicly elected individuals (especially state legislatures and Congress), there are many instances in which conservative and liberal justices rightly cast votes overturning government action, either to protect liberties or to ensure that state and federal agents do not act outside of their legal authority. As the federal government has grown in size and breadth, so too has the authority of the court to rule on the constitutionality of the actions take by the Congress and the Executive branch. Oftentimes, so-called “judicial activism” is merely a reaction against overzealous legislation or against questionable actions by the executive (the EPA’s Bush era decision that it could not regulate greenhouse gasses is a good example of a instance in which an agency’s action prompted judicial review). In this case, the judiciary is serving its intended purpose by holding the other branches of government accountable.

    Additionally, I think you could flip your argument that the court needs more individuals with political experience on its head: perhaps if our legislators were better versed in the nuances of the law, then the courts wouldn’t be so busy cleaning up after them! (I say this partly in jest, because many of our leaders are in fact lawyers by trade, though far fewer have ever served on a state or federal court.) In any case, I do think that we could use a few more Constitution-wielding Ron Pauls!

    Third, I think that many “professional jurists” would take issue with the idea that it is easy to move away from abstract theorizing and legal hair-splitting. Many of the issues that reach the Supreme Court are in fact difficult issues that require the justices to weigh conflicting, yet valid arguments. Opinions that confront cases of this kind often engage in high-minded rhetoric and lengthy debates about obscure tests that past justices have applied, but such an approach is often necessary to navigate the complexities presented by such cases. And although the justices’ various approaches to the law (such as Scalia’s original intent), sometimes attract the ire of the right or the left, I’d much prefer justices who try to make decisions based on some sort of principled methodology (even if I think it flawed) to ones who are overly attentive to the whims of the general public. Politicians are very good at compromise, but they are also very good at putting their ears to the ground and doing what their constituents want. That kind of an approach to the law would make the court much more like a second legislature than some already claim it is.

    As for my guess, I think I’ll go with Judge Sotomayer, even though she’s one of the most talked-about candidates. Obama needs Kagan arguing cases for him and she will also be in a stronger position once she has served for a couple of years as solicitor general. I’m not a big fan of identity politics, but if that’s a deciding factor, then I think nominating a Hispanic makes a lot of sense politically, and there aren’t too many Hispanic Women with the credentials of Sotomayer. My dark horse is Katherine Sullivan, who, if confirmed, would be the first openly gay justice on the court. Next week should be interesting if Obama decides to make the announcement!

  2. What would Dwight Eisenhower, who called the appointment of California Governor Earl Warren “the biggest damned fool mistake I ever made” say about this?

  3. Will – My guess is Ike would have said, “I wish I picked a different politician!” His objection to Warren was not based on his background, but on his rulings (particularly on civil rights….)

  4. I really need a T shirt so I’m going with Jennifer, even tho Kagan and Sotomayer both have splendid Princeton degrees. Granholm is a WASP from a state that has had terrible problems, she’s managed well, and she is still quite popular. And I have a feeling she’d like to leave. She will undoubtedly “feel the pain” of every woman whose case gets to the SC.

    Of all the selection criteria, I find it interesting that the easiest to agree on is that it will be a woman. Maybe we will be fooled. No one I have spoken to thinks it will be a black, a Jew, or a Catholic for all the obvious reasons.

    Conor, do you think Sotomayer’s diabetes will be a factor?

    Will, maybe it will be Norm Coleman, so all you Minnesotans can stop counting and go back to work.

    Jack Goodman

    PS For true insight on the selection process read Christopher Buckley’s “Supreme Courtship”. Where is Pepper Cartwright when we need her?

  5. Jack – You are going the “politician” route, but not backing your favorite, Hillary?

  6. Prof. Dickinson-

    I’m not so sure a politician will result in fewer split decisions. To my understanding, Roberts has kept the Rehnquist policy of no discussion during conference intact. Granted, the justices can still visit each other’s chambers, though it’s rare. I think this focus on identity politics is asinine. Being black doesn’t lead to any inevitable consequences for judicial philosophy, as we’ve seen with Thomas, and I don’t see how being Hispanic or lesbian would, either. My ideal choice would be Cass Sunstein, though I know he has some obscure bureaucratic job in the administration right now. If the pressure for a politician-nominee is indeed strong, Deval Patrick is a name that you didn’t discuss, and I believe his popularity is waning in Massachusetts.

  7. Am I right in guessing you think Kathleen Sullivan is not a viable choice, Matt? She fits two of your three criteria: she is very smart and well-connected (and failing on the unclear opinions mark).

  8. Vijay – Kathleen Sullivan is everyone’s favorite sleeper candidate, but if she’s selected, who will put out the nifty legal casebook that seemingly every con law course in the nation uses? :>)

    Note that I have spent almost no time studying individual candidates to determine who is most likely to be nominated. My interest, as a political scientist, is in the process and reasoning that goes into Obama’s choice, and the implications of that choice for the court as a political body.

    Of course, it’s fun to speculate, particularly when a cool t-shirt is at stake! But when it comes to a specific candidate I have no particular insight to offer beyond what anyone can read in the paper.

    Jeff – I don’t need to remind you that court appointments aren’t all about the substantive implications of a candidate’s judicial ideology. As a political institution, the Court also serves as a symbol – it is representative body of sorts. It follows that the decision on whom to appoint can’t help but turn at least partially on identify politics. Like it or not, symbols are part of the political process. (Witness the recent presidential election!)

  9. Matt, it could still be Hillary. She might really want it now. She really looks wasted with all the travel and pressure of Sec State.

    Here’s one from deep left field. Bill Sessions. Articulate, moderate, and done well on the sentencing commission. Just enough to throw the Republicans off their game, and do you think maybe Pat would help him along?

  10. I don’t need another T-shirt and haven’t a clue as to who the actual nominee will be. But just to be in the game I’ll say Diane Wood.

    As for picking someone with deep political experience, I am 100% for it. After all, constitutional law is just politics (in the best sense of the word) played on a different field with different rules and norms.

  11. Bob – It’s not just “another T-shirt” – it a genuine “It’s the Fundamentals, Stupid!” T-shirt. You might as well say that Da Vinci’s The Last Supper is just another painting!

    Jack – if Sessions gets the nomination, you get two T-shirts.

  12. I agree with Conor’s first point, because I think it will be very important to ensure that for abortion, federalism, and executive power there remains a 5-4 ratio on the court. I do not believe that Obama would take a chance with a politician that might arrive at her or his own legal theory.

    I wonder the consequences for Obama’s ‘presidential power’ if he picks a politician without a verifiable legal history. It seems to me he would better preserve/enhance his bargaining power by choosing the justice that appeals to the most important members of Congress and their constituents with a length record of decisions or legal articles. As an advocate for this president I would hope that he uses this decision as another opportunity to solidify his ‘professional reputation,’ particularly with THE TWO MODERATE REPUBLICAN SENATORS FROM MAINE. It seems he is a few Senate votes away from incredible legislative opportunity (assuming endless legal challenges for Franken and an errant Specter), and this nomination provides him an opportunity to bargain and ensure continued progress for the next 100+ days of his administration.

  13. RE Adam’s point about moderate Republican Senators from Maine, I was wondering if there are moderate Republican non-jurist-types who might be good fits?

    Christie Todd Whitman? Lawyerly credentials aside, this choice passes my gut-check about how Obama uses optics. Obama seems to like taking “chances” that are very down-the-middle.

    She is a semi-retired politician with good moderate bona fides, and has always been a Republican. She is not a lawyer and is a non-jurist, meaning she’s both easy and hard to challenge during confirmation. There would be a cry from the left, but her responsible-government efforts are a good fit for what Obama wants as his legacy.

    I like that she didn’t practice law, but executed it, in her career. I also know it’s a pipe-dream. Oh well.

  14. On a slightly unrelated note – is anyone watching Obama’s speech on national security this morning?

    Fairly nice touch to hold the speech in the national archives, right in front of the Constitution, Declaration of Independence, and Bill of Rights. Powerful setting to highlight the importance of the “rule of law.”

    Jack Goldsmith, former head of the OLC (after Bybee), had an interesting piece earlier this week in the New Republic, in which he argues that Cheney’s criticism of Obama is unfounded, mostly because Obama has in fact adopted a fairly similar approach to the Bush administration in a number of areas. Goldsmith credits Obama, however, with a sharp departure from the rhetoric and argumentation of his predecessor – characteristics that he thinks makes Obama’s policies more effective.

    You can find the article here:

    http://www.tnr.com/politics/story.html?id=1e733cac-c273-48e5-9140-80443ed1f5e2

    Regarding the choice of Souter’s replacement, it will be interesting to see what views Obama’s appointee holds on issues related to executive power. I guess we will have to wait and see!

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