Tag: Supreme Court

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Barack Obama Law Politics The Bush Legacy The Opinionsphere

How the Supreme Court Nomination Process Rewards the Type of People Who Defer to Presidential Authority

[digg-reddit-me]David Brooks did a great job today of describing the type of individual our current Supreme Court confirmation process tends to reward (to paraphrase):

A person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess, and who therefore we are forced to construct arguments based on speculation because they have been too careful to let their actual positions leak out.

Brooks locates this type of individual — as is his wont (see for eg. bobos) — in a general sociological group:

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

Brooks sees this as a flaw in his evaluation of Elena Kagan:

Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook). There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly…

But I was struck by the similarity of David Brooks’s evaluation of Elena Kagan now and Dahlia Lithwick’s evaluation of John Roberts when he was nominated:

I knew guys like [John Roberts] in college and at law school; we all knew guys like him. These were the guys who were certain, by age 19, that they couldn’t smoke pot, or date trampy girls, or throw up off the top of the school clock tower because it would impair their confirmation chances. They would have done all these things, but for the possibility of being carved out of the history books for it…

My sense that Roberts has been preparing for next month’s confirmation hearings his whole life was shored up by a glance at the new memos released by the Library of Congress yesterday. As early as 1985, Roberts was fretting about how federal government records disclosed to Congress before confirmation hearings could tank a nomination.

Roberts was widely seen to have been very “careful” and “cautious” throughout his life — intellectually and otherwise. Yet David Brooks had a different reaction to Roberts nomination:

Roberts nomination, how do I love thee? Let me count the ways.

Less important than this minor bit of hypocrisy (which Bill Scher for the Huffington Post mines for all it’s worth) — or perhaps partisan blindness — on the part of David Brooks (and haven’t we all been there?) — is the substance of his critique. Brooks never quite connects the dots — but seems on the verge of making a profound point.

There seems to be a connection between the personality type of Kagan and Roberts — the type of cautious, establishment-minded personality rewarded by our current nomination process — and the tendency of this type of person to defer to the highest authority figure in the American psyche, the President of the United States. In Roberts and Alito, we have 2 of Brooks’s Organization Kids who also happen to be 2 of the most pro-presidentialist Supreme Court justices in history. Though Kagan’s views on this aren’t clear — as she has made some comments indicating an expansive view of executive power only in the context of discussing the views of others — we do know that she felt the Bush administration went too far, unlike Roberts and Alito.

Though I would have preferred a justice more wary of executive power, for me personally, this concern is not enough to give me reason to oppose Kagan’s nomination and appointment. I do want to know more about Kagan’s views on this — to see whether and to what degree she conforms to Glenn Greenwald’s fears (which are, as it should go without saying regarding Greenwald, hyperbolic). Lawrence Lessig has pushed back convincingly against Greenwald on this issue — and of course, Greenwald responded by going ad hominem.

Both Greenwald’s and Brook’s critique ignores the structural element to this pick as neither addresses the degree to which our current confirmation process tends to reward cautious people whose public views are somewhat ambiguous but who are close enough to those in the executive branch that the President nominating them trusts them. The type of person who would meet these criteria would not tend to be the strongest supporters of the Court as a check on executive power. Even aside from the generational category of “Organization Kids,” this would tend to place people deferential to presidential authority into the Supreme Court.

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Also interesting: Ezra Klein posits a better analogue than John Roberts to understand the Kagan pick is Barack Obama himself:

When Obama announced Kagan’s nomination, he praised “her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.” This sentence echoes countless assessments of Obama himself.

Obama is cool. He makes a show of processing the other side’s viewpoint. He’s more interested in the fruits of consensus than the clarification of conflict. In fact, just as Kagan is praised for giving conservative scholars a hearing at Harvard’s Law School, Obama was praised for giving conservative scholars a hearing on the Harvard Law Review. “The things that frustrate people about Obama will frustrate people about Kagan,” says one prominent Democrat who’s worked with both of them.

[Image by the Harvard Law Review licensed under Creative Commons.]

Categories
Law Politics The Bush Legacy

Alberto Gonzales: Sharp Like An Old Crayon

The Times always gets an interesting array of questions written by prominent individual for its pre-Confirmation hearing piece with questions for the nominee. This last attempt was no different – but as always – the questions often revealed more about the questioner than their intended answerer. For example, Alberto Gonzalez suggests Sotomayor be asked:

Some overseas critics have questioned the legality of United States government policies on the war on terrorism. Should America’s standing in the world, to the extent it may be affected by the outcome of a case, ever inform a judicial decision?

Clearly, Gonzales thinks it should affect the outcome of cases – but it seems impossible to see how this principle would be applied. But one can guess that this argument was used to push Gonzales into taking positions he might not have otherwise as David Addington, Scooter Libby, and other top Bush administration officials working under Cheney pushed various extreme positions in secret – and then to cover up the excesses while Alberto “I Don’t Recall” Gonzales was Attorney General.

But it takes some sharp like Gonzales (sharp like an old crayon) to expose the underlying idea so baldly. Presumably Gonzales thinks American citizens have a right to know what the American government is doing in their name – but that this right must be counterbalanced by a Court acting as a kind of public relations arm of the U.S. government. As Glenn Greenwald said (in a piece I cannot find at the moment, so I paraphrase): “The inevitable logic of this position is that the worse the crime is, the greater the necessity to cover it up to protect America’s image.” This obviously creates an incentive for administration officials to make sure that their crimes are so bad future administrations will be compelled to protect them – to prevent information from becoming public and damaging America’s reputation.

[Image by Matthew Bradley licensed under Creative Commons.]

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Humor Law

Justice Ginsburg Loses a Shoe

Emily Bazelton in interviewing Supreme Court Justice Ruth Bader Ginsburg for the New York Times magazine this weekend prompts Ginsburg to tell this small, charming story behind how a rumor about her health had gotten started:

[S]ome reporter said something like, it took me a long time to get up from the bench. They worried, was I frail? To be truthful I had kicked off my shoes, and I couldn’t find my right shoe; it traveled way underneath.

[This image is in the public domain as it is an official work of the U.S. government.]

Categories
Barack Obama Economics Financial Crisis Law Politics The Bush Legacy

The Supreme Court Holds Up the Chrysler Sale

I actually decided to write a short piece stating my hope that the Supreme Court would look into Obama’s and Bush’s expansion of executive powers in tackling the financial crisis before the Supreme Court delayed the sale of Chrysler to Fiat. Now that they have, I’m relieved if a bit nervous. The key issue is the use of executive power in a crisis – as Michael J. de la Merced explained the issue:

In a broader context, such a decision would also give the justices an early opportunity to consider the scope of the wide-ranging but not unlimited authority that Congress granted the president to address the economic crisis.

I think this is a good thing – though I’m not sure how the timing of this will affect things. Generally, the strongest decisions restricting the executive’s freedom in a crisis have come after the crisis has past. With the rash of bad news on the economic front – even as most indicators seem to be levelling off – this financial crisis is not yet over. On the one hand, strong action by the Court at this time to curb the power of the president could destabilize the economy, as it is confidence in the power and determination of the executive branch and the Federal Reserve to backstop the financial system that seem to have restored confidence in the market and economy itself. At the same time, the Supreme Court is less likely to challenge the president’s authority in the middle of a crisis – making it more likely the decision will be deferential.

It is possible that all of these competing claims could be dealt with responsibly – with a Solomonic decision along the lines of Marbury v. Madison. It’s also possible that the Court may find Presidents Bush and Obama both acted constitutionally in their response. But as a matter of policy, the recent government interventions into the market are ill-advised if they extend beyond the minimum amount of time. As I wrote regarding Obama and the Rule of Law:

The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law.

The one issue that strikes me as worth considering – on matters of constitutionality rather than policy – is whether or not Bush and then Obama acted within their powers in providing loans to Chrysler and General Motors; perhaps a Court should also look at the broad authority given by the TARP bill itself and set some standards regarding what authorities and monies can and cannot be extended to the executive branch by the legislative.

The whole process of drafting and passing the TARP bill was obviously flawed – though it’s difficult to judge legislation passed in the midst of a crisis. The only logical way out of this I’ve heard mentioned would be to “stockpile laws” as Philip Bobbitt once suggested with regards to terrorism.

But even as there is a flawed process, it’s not clear what if anything was unconstitutional.

At the same time, I’m glad to see the Court looking seriously at getting involved. I’m all for these checks and balances.

Categories
Law Political Philosophy Politics

Judge Sotomayor Defends a Racist Cop

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All the talk of Sonia Sotomayor’s racism tends to focus on a few of her remarks in her speeches (especially one in particular) and her ruling in a single case. But looking at her record on discrimination lawsuits, for example, she only ruled for the plaintiffs in 10 of the 96 racial discrimination claims that were before her. In one prominent case, she sided with a police officer who had sent out anonymously racist and anti-Semitic mailings in a strongly worded dissent. What’s more significant to me though is the extent to which Sotomayor interpreted the law to protect individual rights, in this case, the First Amendment.

Last week, I wrote I was concerned about Sotomayor’s decision in the “douchebag” case:

I think the role of Courts in checking the increasing power of corporations, schools, and other semi-voluntary organizations to monitor and police the private activities of citizens is going to gradually become a big issue. That Sotomayor signed onto an opinion then that allowed the restriction of free speech on a non-school affiliated blog because calling administrators “douchebags” presented a “foreseeable risk of substantial disruption” is a matter of concern.

The case of Pappas v. Guiliani shows a different side of Sotomayor’s jurisprudence. The plaintiff was an NYPD officer who was resposible for maintaining the department’s computers. He received several mailings at his home from charity groups associated with another police department and returned them anonymously filled with “offensive racially bigoted materials.” Or so he thought. The Nassau County Police Department started an investigation – and were able to determine Thomas Pappas’s identity because the return envelopes were coded to be tracked. The police department sent out another mailing to Pappas – and again received hate mail in return. They notified the NYPD which then performed the same experiment – and once again, Pappas sent them back an envelope filled with racist literature. At a disciplinary trial before the NYPD, Pappas explained his behavior was a form of protest as he “was tired of being shaken down for money by these so-called charitable organizations.” The NYPD then fired him – and in return he sued claiming his dismissal violated his First Amendment rights. The first judge to hear his case dismissed it – and Pappas then appealed to a three judge panel of which Judge Sotomayor was one member.

The panel upheld the dismissal – but Sotomayor registered her lone dissent in a strongly-worded opinion.

In upholding the dismissal, the Court determined that Pappas speech was protected under the First Amendment as it was “upon a matter of public concern.” But the Court explained, under certain circumstances, free speech rights were subordinated to the interest of the state – specifically with regards to the state as an employer. The opinion quoted Justice Oliver Wendell Holmes: “A policeman may have a constitutional right to [speak his mind], but he has no constitutional right to be a policeman.” Essentially, with regards to state employees, the protection of the First Amendment is limited to matters of public concern (to avoid an employee being protected while making privately disparaging or harassing remarks) and then must be balanced against the interests of the state in it’s public relations. If, for example, a police chief publicly states he is in favor of discriminating, he can then be fired – even though he is speaking on a matter of public concern – because his speech interferes with the ability of the police department to do it’s job. Court precedent states that each judge must evaluate the potential damage that would be caused by keeping the person and balance this against the First Amendment rights of the individual. In this case, the majority opinion found that the potential damage of a computer technician being a racist was vast – due to the publicity surrounding the case.

The other judge on the panel agreed that Pappas’s case should have been dismissed – but did not believe it was necessary to consider the First Amendment implications as the Court’s official opinion did, saying that Pappas’s speech was merely private – and thus not protected by the First Amendment.

Judge  Sotomayor though dissented:

Today the Court enters uncharted territory in our First Amendment jurisprudence. The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech — where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee’s own time; where the employee’s position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community…The Court should not…gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

She had several points. One was that while she did not dispute that someone “has no constitutional right to be a policeman,” the position one held was important. Thus, she writes:

In Rankin, the Supreme Court applied this analysis to the law enforcement context and found that “where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal.” Rankin, 483 U.S. at 390-91.

She also attacked the Court’s opinion regarding how it attempted to balance the potential damage caused by Pappas’s mailing and his free speech rights:

At some level of abstraction or aggregation, the potential for racist statements to damage the NYPD may indeed be “immense.” But that is not how the fact-specific Pickering test is applied. The question is how potentially damaging is this speech — that is, these leaflets sent by this employee under these particular circumstances.

In the end, Sotomayor’s defense of Pappas is grounded in the precise principles I would hope:

The majority’s decision allows a government employer to launch an investigation, ferret out an employee’s views anonymously expressed away from the workplace and unrelated to the employee’s job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government “reasonably believed that the speech would potentially . . . disrupt the government’s activities.” Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998). This is a perversion of our “reasonable belief” standard, and does not give due respect to the First Amendment interests at stake.

Sotomayor’s opinion is exactly what I would want from a Supreme Court justice. It is grounded in law, precedent, and a reverence for our founding principles; in this instance, she is also defending the unsavory, even though she clearly disagrees with his positions; most importantly, she is protecting basic rights against powerful interests.

[Image by keithpr licensed under Creative Commons.]

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Barack Obama Criticism Law Politics The Opinionsphere

Conservative Empathy

Doug Kendall and Dahlia Lithwick take on the conservative attacks on empathy by pointing out the hypocrisy of the position:

Every time Justice Antonin Scalia writes a habeas opinion that begins with the depiction of a gruesome murder, he is evincing empathy toward the victim. When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white “victims” of affirmative action. It’s a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. And smart advocates on either side, knowing that, seek out “sympathetic plaintiffs” for litigation precisely because they are attempting to appeal to some part of the court’s lizard brain; the part that does more than mechanically apply the law to the case.

I think that’s about right.

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Barack Obama Law Political Philosophy Politics The Opinionsphere

Replacing Souter

There’s a few different schools of thought on how Obama should go about replacing Justice David Souter. Dahlia Lithwick – a few months ago – called on Obama to make his next appointment “a hero, a bomb-throwing, passionate, visionary, liberal Scalia.” Others are just calling for Obama to place someone liberal enough to counter-balance the extreme conservatives appointed by Bush. Conservatives and right-wingers are calling on Obama to appoint someone “moderate” – though given the political circumstances, it is almost guaranteed that they will not accept any appointment, no matter how “moderate.” All of this is based on a rather direct analysis of the Supreme Court – presuming that decisions are and will be made based on political viewpoints. 

I’m not trying to say that we should accept Justice Roberts’s oft-cited analysis of the judge as umpire – just calling the law as he sees it. I thought Obama made an excellent point back in July 2007 when he critiqued this view:

 When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. You know, he’s good to his dog. He’s so well qualified.”

I said, well look, that’s absolutely true and … in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Ed Whelan over at the Corner is trying to make a big deal out of what he’s calling Obama’s lie – which is that judicial philosophy is unimportant. He cites the above quote as proof Obama thinks judicial philosophy is unimportant – but he doesn’t seem to have read it closely, as you can clearly see Obama say:

[I]t’s those five percent of the cases that really count.

The person Whelan really should be attacking – if he believes judicial philosophy is unimportant – is Justice Roberts who sought to minimize the role of politics in his decisions (at least in his pre- and post-appointment rhetoric.)

But what I’m interested most in is a justice who can move the other members of the Court – either through personality or their compelling understanding of the law. One historical type that has moved the Court would be a politician – such as Sandra Day O’Connor or Earl Warren – whose personality drew other justices to accept some of their decisions, and gradually shaped the Court over time. This is why I think it’s a bad idea to appoint a liberal version of Justice Scalia – whose personality actually hurt his politics. Jennifer Granholm is a good possibility on this front. As would Hillary Clinton or Al Gore if they were only younger.

In the alternative, Obama could appoint an ideologically interesting thinker – who is liberal, but nevertheless, thinks outside of the box. The two people that come to mind on this score are Cass Sunstein and Lawrence Lessig. Lessig is probably too young yet – and Sunstein has not only encountered surprising resistance to his appointment to an obscure position, but he probably would like an opportunity to take a crack at enhancing that position and testing his theories on libertarian paternalism. 

Finally, I like Harold Koh for the post – even though it is unlikely he fits into any of the above two categories. He’s national security thinker with a great resume. I don’t know his record on most issues – but I’ve heard him speak on national security law – my main interest – and he has strong, nuanced positions, viewing our national security apparatus as a whole system rather than as a series of isolated issues. He would be a strong voice in reigning in an executive branch that has barely pulled back in terms of it’s assertions of power in the national security arena.

Categories
Barack Obama Law Liberalism Politics

The Last Thing We Need Is A Liberal Scalia

Dahlia Lithwick, who I rarely fail to mention, is one of my favorite writers, had a piece a few days ago on what she wants. In a Supreme Court justice that is. And I lightly paraphrase:

Wonky liberal lawyer seeking a hero, a bomb-throwing, passionate, visionary, liberal Scalia for a seat on the Supreme Court!

One of the main facts revealed in all those recent scholarship of the Rehnquist (O’Connor) court, though, was that Scalia’s brash personality and insulting style actually pushed the moderates to the left – or drove them to be less susceptible to being wooed to Scalia’s side in an argument. Though the Court has indisputably moved far to the right since Scalia entered it, seven of the past nine Supreme Court justices have been appointed by Republican presidents. The two appointed by Clinton were moderates chosen to be confirmed by a Republican Congress. Yet, the Court has only moved slowly towards conservative positions. There are many explanations of this, but for anyone who considers the social dynamics of the Court to be significant – and from her article Dahlia seems to be one who does – then Scalia’s antagonistic approach to O’Connor’s sloppy reasoning and Kennedy’s pomposity certainly must be one factor. A brash, bomb-throwing liberal then is exactly what the Court doesn’t need. 

What I think it does need is a libertarian-minded liberal who can forge an alliance with Scalia on certain issues – and perhaps Thomas as well. Both Alito and Roberts seem to be enamored of executive power – and perhaps that was why it was they who were chosen. I consider them lost causes. But Scalia and Thomas are conservatives of an older school – one which a contemporary liberal – such as Lawrence Lessig or even Cass Sunstein – has much in common with.

I think Dahlia would be happy with that though – a Lessig, a Sunstein, and a Lawrence Tribe. Perhaps a Harold Koh and an Elena Kagan. Instead of a bomb-thrower, I think Dahlia just wants a liberal with a vision instead of an incrementalist. On that, I agree.

Categories
Law

What’s Next: The Court

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

  • Any justices Obama appoints will undoubtably be younger than is traditional – as Bush recently appointed two conservatives in their 50s in Roberts and Alito.
  • It is also likely that, as the Supreme Court has traditionally been factionalized by race, religion, and gender – from the mid-1800s when there was a “Jewish seat” on the Court and a “Catholic seat” to focus on keeping women and African Americans since the 1980s – Obama will want to appoint at least one woman and on Hispanic to the Court.

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.