There has been a lot of division within the progressive community about whom President Obama should pick for the Supreme Court. Much of the dust-up has surrounded Solicitor General and former Harvard Law School Dean Elena Kagan. Constitutional scholar Linda Monk has been an outspoken supporter of Ms. Kagan. (I consider Ms. Monk to be a friend.) On the other side of this debate is former civil rights attorney and premium blogger Glenn Greenwald, who has argued that for all that Ms. Kagan has accomplished we know very little about her thoughts on important issues which will face the court. (Glenn is also a friend. Both he and Linda have been on my radio show several times.)
I’m not sure that past performance is any guarantee for future Supreme Court voting. Conservatives have whined about John Paul Stevens and Sandra Day O’Connor. These were judges who were thought of as conservative but supported many liberal ideals while on the court. Plus, once you are on the court you might have different motivations than you did previously. An appointment for life to the highest court in the land can change one’s outlook on life and the law.
Ms. Monk has talked about the need for more consensus on the court. We need fewer 5-4 decisions. She mentions in a recent article on HuffPo that this kind of 5-4 decision “merely prolongs the dispute and creates more work for lawyers and political fundraisers.” I think she is right. Earl Warren worked to gain consensus on the Court. The Court stood united on some of the most contentious issues of the day. In my opinion, this is exactly what we need. We need someone who is used to mixing it up with conservatives and liberals, someone who can work the politics of the court and bring folks together. Ms. Kagan did help bring conservatives and liberals together at Harvard. This is a fact. Are 7-2 and 8-1 decisions possible with Alito, Roberts, Scalia and Thomas on the court? I don’t know. I do know that Kagan is well qualified. She maybe the prefect person to bring the court together. But whomever Obama chooses for the Court will not be the Chief Justice. Roberts has that job and he seems to have little or no interest in consensus.
I think that there are a few other things to consider. I do think that there needs to be a far left Supreme Court Justice to balance out Scalia. Almost nobody is to the right of Scalia on any Supreme Court decision. The left needs its own Scalia. Such a person would have to be extremely strong. I’m talking about an attorney for Greenpeace or the Sierra Club who drives a hybrid or, better yet, rides his/her bike to work and gives 50% of his/her money to a homeless shelter. I think that Obama’s aversion to confrontation and his willingness to find the middle of the road will make such a nomination very unlikely, but this is my post and that’s one of the things that I would like to see.
I would love for Emory graduate (I’m an Emory graduate) Leah Ward Sears to be on the Supreme Court. She is a former Chief Justice of the Georgia Supreme Court. A very conservative Democrat, she was originally appointed by Zell Miller. Someone who can be appointed by Zell Miller and supported by liberals has to be very savvy. She was elected to the Georgia Supreme Court in a statewide election – twice. I think that there is something very special about Leah Ward Sears. I don’t think, though, that she has has a chance of being nominated. Obama is not going to choose a black woman. I just don’t think he wants to go there. Not now. Maybe late in his second term if he has the opportunity.
I think that Obama will need to choose a senator. I think that a senator might have the best chance of being confirmed without a bruising battle. The problem is that most senators who are even concerned as outsider candidates come from states that have Republican governors – Shelton Whitehouse (RI) and Amy Klobachar (Mn). I like Klobachar better. She is relatively young and politically smart. She has a great background. I think that she would do very well in the back room discussions that the Supremes have.
So, in summary, I think that Glenn is arguing over something that is not reality. I don’t think that we can predict how a Supreme is going to vote on a given issue. This is my two cents. Both Glenn and Linda are lawyers. They both have studied this issue more than I have. I would like to look past the front runner to an outsider. I really like Klobachar and Sears. I think that either one can and would do an excellent job on the Supreme Court.