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By Joe Campbell
November 12th, 2008

Before the election, some Republicans were trying to gin up some controversy by imputing obscure and extreme judicial views on Barack Obama – focusing especially on remarks he made in July 2007, described here by The Hill:

“[Chief] Justice Roberts said he saw himself just as an umpire,” Obama said. “But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be,” Obama said, adding that justices should understand what it’s like to be gay, poor or black as well.

Steven Calebrisi, founder of the Federalist Society, wrote a very influential piece appearing in the Wall Street Journal in which he combined the most extreme possible interpretations of the statement about empathy (first taken out of context) with a somewhat bizarre (but politically very useful for the McCain camp) interpretation of remarks Obama made in a 2001 radio interview about the Warren Court. This led Calebrisi to the grandiose conclusion that:<

Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation’s courtrooms.

Putting aside the fact that Calebrisi did not find it necessary to raise his voice against those who used his own legal theory – that of the unitary executive – to actually and explicitly place the president above the law, Calebresi’s concern here is misplaced, as I think you can see just by reading the passage above from The Hill.

But if Calebresi’s half-assed op-ed doesn’t help us understand who Obama would appoint to the Court, then what does?

After all, Supreme Court appointments can be a president’s greatest legacy – affecting policy for many years after a president has gone.

Potential Supreme Court Justices

Obama, as a former constitutional law professor, has obviously put a great deal of thought into who he might appoint to the Supreme Court. Many names have been floated – politicians like Jennifer Granholm, Janet Napolitano, Hillary Clinton, and Ken Salazar; academics such as Harold Koh, Elena Kagan, and Cass Sunstein as wel as a number of current judges. With Ruth Bader Ginsburg and John Paul Stevens likely to retire during Obama’s term, and David Souter wishing – according to Jeffrey Toobin, author of The Nine – to withdraw back to the19th century lifestyle he enjoys in New Hampshire away from the Court, Obama could get three – and if Obama is reelected in 2012 – even four nominations to the Court. Justice Scalia will undoubtably do everything possible to avoid retiring during Obama’s presidency, but he is getting older as well – and would be 80 by 2016. Justice Kennedy would be 80 as well – but he does seem to so enjoy being the swing vote that it is hard to see him ever leaving the Court.

Superficial factors in choosing the justices

The Dynamics of the Court

Obama has spoken of how Justice Warren – as a former politician – was able to win majorities by winning over the other justices. Jeffrey Toobin, writing about the Court over the past decade, has described Sandra Day O’Conner having a similar role during her tenure. In fact, since the Court’s founding, former politicians have had a way of dominating the stately and apolitical Court – beginning with John Marshall. Which is why the first appointment Obama makes should be a former politician – probably a woman. Especially if John Paul Stevens, the unofficial leader of the liberal wing of the Court, retires, Obama will want a strong personality to take his place. As Janet Napolitano is the favorite to become Attorney General, that leaves Jennifer Granholm, Governor of Michigan and a former state attorney general as the most logical choice.

Beyond this first choice of a female politician, Obama’s options are more open.

For his second nomination I would reccomend an academic – Elena Kagan, dean of Harvard Law, or Harold Koh, dean of Yale Law, would be the logical choices here – as both are young and prominent liberals in academia. Koh’s name has apparently been generating real buzz as a potential Obama pick.

Certain to be on any short list is Cass Sunstein is an important legal scholar and a close friend of Obama’s. He recently wrote a book with the conservative economist Richard Thaler about libertarian paternalism.

There is one potential candidate I have not heard mentioned though – and especially if Scalia were to retire from the bench, this former Scalia law clerk, former Reaganite, and former libertarian would be the perfect choice – Lawrence Lessig, whose innovative work founding Creative Commons and now the Change Congress movement, and whose influential work on internet law, copyright and corruption have made him a legal star.

Libertarianism v. Liberalism

With these four appointments, Obama could profoundly alter the Supreme Court’s ideological make-up – by replacing the traditional statist liberals and Rockefeller Republicans on the Court making up it’s current left wing with a charismatic pragmatist, and other liberal, and two libertarian-influenced liberals.