The Next Supreme Court Justice

Well, here we are again. For the second time in two years, President Barack Obama has an opportunity to shape American jurisprudence for decades to come.

For liberals such as me this could not come at a better time. For the President however, the timing presents some thorny challenges, among them having a Senate confirmation battle on his hands lasting throughout the summer with a potentially disastrous impact on the 2010 November mid-term elections, as if he wasn’t facing that prospect already—without this development.

To fully appreciate the President’s dilemma, consider the environment in which the coming confirmation battle will take place.

On the right, it will conjure up the most heated passions of Republicans and so-called tea party activists who are foaming at the mouth to somehow propel themselves back into power. If you think the healthcare debate was partisan and combative, just wait as this summer’s political landscape unfolds creating even more divided and partisan driven emotions than normal.

Despite the recent victory of the President and the Democratic Congress in passing healthcare reform, their triumph came on a sheer majority of numbers. There was a total absence of bi-partisanship with even so-called moderate Republicans like Congressman Mike Castle of Delaware voting against healthcare. With respect to the U.S. Senate, once again there was total partisan divide with not one Republican voting for healthcare and this is the body that will have to ultimately confirm the President’s next nomination to the Supreme Court.

If I was advising the President today, I would do everything I could to persuade him to go for it—to get the most liberal justice he can because first the Democrats could get killed at the polls this fall, and while this is probably an unfortunate choice of words given the current political climate, he needs to do it anyway. Second, the President needs to seize this opportunity and place onto the court a relatively young and liberal justice who will act as a judicial opposite to the conservatism of Justice Anton Scalia and particularly Chief Justice John Roberts who is more than a constitutional conservative but as in the case with the recent corporate campaign contributions ruling, someone who is willing to re-write the Constitution.

There is no doubt that I was bursting with pride when President Obama nominated the relatively young Sonia Sotomayor to the highest court in the land. Nevertheless, I long for something a little more to the left because in reality, Justice Sotomayor is not a liberal with a capital L, certainly not one who would be the kind of bulwark against the rising tide of conservatism on the Supreme Court that Justice Stevens represents.

The really good news in all this is that perhaps not for a very long time has there been such a strong group of smart, competent and liberal judges to choose from. The most limited amount of research turns up such wonderful choices as Massachusetts Governor Deval Patrick, Michigan Governor Jennifer Granholm, State Department Legal Advisor Harold Koh, Stanford Law Professor Pamela Karlan, Solicitor General Elena Kagan, and Ninth Circuit Court Judge Kim Wardlaw. All are strong progressives who have ruled enough times with a progressive take of the law that few could deny their liberal credentials.

I recognize just as much as any other Obama supporter, that he must choose strategically—just as any other President would have to. He is caught between the need to retain the support of his liberal base, most of all keeping a Ralph Nader like candidacy from springing up in 2012. As for the conservative and even the so-called independent vote, I really don’t think there is much the President can do about them. Even if he nominated Sarah Palin to the Court and she, God forbid, was confirmed, it would not be enough to satisfy the howling dogs at the White House gate who want him out of office.

There is however, two candidates from which he could choose that would not chase away the howling dogs, but just might mollify some of their handlers. Either one of these candidates would make it almost impossible for liberal activists to abandon the President for not being progressive enough. They are of course, President Bill Clinton or Secretary of State Hillary Clinton. I know that just the mention of the name Bill Clinton sends certain people on the right into paroxysms of fury and much hair pulling and gnashing of teeth, but I really think that most Americans respect and feel warmly toward the Clintons and see them as a couple who are committed to public service.

No doubt, they are also both vulnerable to criticism, who isn’t? And yes, those criticisms are of both a personal and political nature, but those criticisms however are of the past, and even the staunchest conservative has to admit that they are two intellectual powerhouses that are fully capable of deflecting most complaints that might be levied against them. More importantly, either one of them would provide a strong challenge to the conservative side of the bench and adequately express a more liberal interpretation of the law, at least as liberal as the vacating Justice Stevens.

The choice for our President is a difficult one, fraught with political landmines regardless of whether he turns left, right or moves doggedly towards the center. Regardless, whether it continues to happen with this nomination or not, change is gonna come. I just pray it is the change of reason and civility, not of anger and hatred.