With Souter's Retirement, Obama Should Be Bold in His Choice

With the word leaking out last night that Justice David Souter will retire from the Supreme Court at the end of the current term, President Barack Obama is presented with what may be his greatest opportunity -- now, or perhaps even over eight years should be re-elected in 2012 -- to shape the judiciary and create a permanent legacy for his own presidency. However, while some in the administration and elsewhere might prefer to elevate a moderate nominee who will engender less controversy and thus obtain somewhat easier approval from the Senate, I believe that Obama do the exact opposite and be bold in his choice to replace Souter. Obama should look to appoint both a young and established liberal intellectual to both give himself a more-lasting imprint on the Federal judiciary and to ensure a more robust liberal bloc on the High Court over the next generation.

In making a SCOTUS nomination, Presidents today are ultra careful in picking a nominee without a hint of written controversy or bold thinking -- left or right -- in their background. I am suggesting that not only should Obama not rule out someone who might have a little bit of controversy in his or her background, but that he should actively seek such a nominee. Indeed, while being bold may not be something the young administration wants to do just months out of the gate and with a myriad of other problems in the hopper, Obama and Democrats will never, ever have as great a chance as they do right now to pick a bold and clearly liberal choice to the Supreme Court.

For those who are not lawyers or big SCOTUS followers, I am not going to use this post to focus on any legal minutia; instead I am going to look solely at pragmatic and political concerns inherent in Obama's impending decision and why he should resist the conventional wisdom of a Sonia Sotomayor. I am not even going to go over the rosters of names you're seeing all over the place because I do not think that is terribly important right now given the deluge of similar analysis across the web today.

The State of the Supreme Court: Advantage Conservatives

As it stands today, conservatives have a decided advantage when it comes to control of the Supreme Court. This should be no real surprise given that seven of the nine Justices were appointed by Republican Presidents. Yet beyond that, conservatives look to have a strong hold on the Court in the years to come because Republican Presidents were also wiser in their appointments than Democrats (actually, just Bill Clinton). This is because Presidents Reagan, George H.W. Bush and George W. Bush actively sought out nominees who were young and could sit on the High Court for over a generation. To demonstrate what this means, let's examine the current Court roster:

Chief Justice John Roberts Jr: 53 years old, 50 when appointed by Bush II
Justice John Paul Stevens: 89 years old, 55 when appointed by Ford
Justice Antonin Scalia: 72 years old, 50 when appointed by Reagan
Justice Anthony Kennedy: 72 years old; 51 when appointed by Reagan
Justice David Souter: 67 years old; 50 when appointed by Bush I
Justice Clarence Thomas: 60 years old; 43 when appointed by Bush I
Justice Ruth Bader Ginsberg: 76 years old; 60 when appointed by Clinton
Justice Stephen Breyer: 70 years old; 55 when appointed by Clinton
Justice Samuel Alito: 59 years old; 55 when appointed by Bush II

Clearly, Republicans have a more conservative Supreme Court today because GOP Presidents have been in office to proffer nominations for most of the current Justices. But a part of this control comes from the foresight of Presidents Reagan, Bush and Bush in tapping jurists who could serve for the long haul. 50, 55, 50, 51, 50, 43, and 55 were ages of the GOP-appointed Justices at the time of their elevation. Breyer was a fair 55 when picked by Bill Clinton, but Ruth Bader Ginsberg was 60 years old when she was named to replace Byron White in 1993. Faced with a conservative-dominated Supreme Court even in 1993 and 1994, President Clinton showed an astonishing lack of foresight in going with, simply put, old nominees for the vacancies he was given when the Court was already Republican-dominated in the early nineties.

For those who don't follow the Court as much, Justices Stevens and Souter have turned out fair more leftist than their original sponsors ever anticipated, and today they are both part of the generally-named liberal core on the Court, along with Ginsburg and Breyer. Chief Justice Roberts, along with Justices Scalia, Thomas, and Alito make up the conservative bloc. Justice Kennedy is the Court's biggest swing vote, but it is fair to say that he sways to the right on more matters than not. Still, even Kennedy aside, there is a four-man conservative group with an average of 61 (53+72+60+59) years old. The liberal bloc's average age (including Souter) comes to 75.5 (89+67+76+70) years old; excluding Souter the average is 78.3 years old -- almost 20 years above the average of the conservative core. I grant that the latter numbers are skewed heavily by Justice Stevens' advanced age, but the fact is that he is on the Court and apparently still running strong. Therefore, we have no idea when he will finally hang up his spurs, and must include him. What are those numbers again?

Average age of the Conservative Core: 61 years
Average age of the Liberal Core: 78.3 years

Consequently, what we have today is a Court which is controlled by a majority conservative group, and which, barring an unforeseen retirement or passing, will be controlled by this group in the years to come. In other words, barring the shocking retirement of Justice Scalia in the near future, these Justices will control the tenor and direction of the Court's jurisprudence regardless of who President Obama replaces Justice Souter with (or even Justice Stevens, assuming he retires in the coming years). Given these circumstances, Obama should look long and hard at who he wants to on the Court (duh!).

Building a Liberal Intellectual Center on the Court

In my view, this is the crux of the choice facing Obama as he considers Souter's replacement. Does he go with the expected choice, likely a more moderate, milquetoast judge who is today sitting on the United States Courts of Appeal and has been careful to not issue many opinions which could be seen as politically controversial? Or does he decide to make a bold choice and tap a clearly liberal individual who has expressed her ideology and bold viewpoint(s) at some point? Naturally, there are many ways to frame Obama's decision and it is not such a simple matter as looking at one angle, but I want to look at the decision from this viewpoint.

I have zero doubt that the initial inclination of many politicians and even some higher-ups in the administration is to take the less-controversial route, and tap a nominee on one of the Federal circuit courts who possesses a written record that does not smack of liberal leanings, or really any leanings at all. The thought process behind this is that such a nominee might encounter Republican resistance -- heck, it is not possible to find a nominee who would be unopposed by the right -- but he or she will nonetheless be much more easily confirmed.

Additionally, I think that one of the key aims of the White House in its pick is to find a non-white male, specifically a female, black, Hispanic, et al., or some combination thereof. This is why you are going to hear the name Sonia Sotomayor many, many times over the next few months, up to when Obama names his choice. Indeed, Sotomayor is both a woman and a Hispanic, so she possesses two assets Obama is likely seeking; not to mention, she has a good life story and is a longtime member of the Second Circuit, arguably the second most prestigious court after the Supreme Court and D.C. Circuit, and thus she has instant legal credibility as a nominee.

Nonetheless, I think Sotomayor, as well as several other potential nominees whose names have been bandied about for years are uninspiring, and frankly mediocre political choices, and Obama should look in other directions. Put another way, in part because individuals like Sotomayor are perceived as the best -- read: safest -- potential selections, Obama should look elsewhere for three important reasons.

Searching for Brennan

While its legacy remains intact in many key areas, much to the consternation of liberals, the Warren Court has been gone for some time. It was finally replaced by the Rehnquist Court in the late 1980s and 1990s, and even a bit today by the Roberts Court's decisions. The Warren Court represented the high point in modern legal history where a robust bloc of liberal judges controlled American jurisprudence. Led by Earl Warren, William Brennan, Hugo Black, William Douglas, and Thurgood Marshall, the Warren Court made a lasting impact on a plethora of matters which exists up through today, despite the best efforts of skeptical conservative jurists. The last living parts of this body disappeared with the retirement of Marshall in 1991, and death of Brennan in 1997. Since then, the liberal spirit that embodied the Warren Court has been left without a voice. With this nominations, and perhaps with others, Obama can make a bold move to find new similar voices in the mold of Brennan and Marshall. In fact, I believe that Obama should actively seek out a leading liberal voice to do just that, as the opportunity to carry out such an appointment in today's super-polarized environment may never be greater than it is now.

In seeking Justice Souter's replacement, Obama should consider first and foremost not moderate "consensus-builders" but clear liberal thinkers in the mold of William Brennan. Should he do so, he could put the stamp on his own legacy, and ingratiate liberals by hearkening back to the Warren Court.

Now, what do I mean exactly? Obama should try to implant a new core component on the Court to help bolster what is clearly an aged liberal bloc. Obama should aim not for another Breyer -- an unquestioned smart and qualified lower court judge -- but instead look for another Marshall: an individual who may have a clearly left-wing bent in his or her legal outlook, and who also may have the unique social background to influence his or her jurisprudence. This may seem counter-intuitive given today's confirmation wars, but in the end Obama should actively look for a jurist who has written, orated and expounded on the big legal questions of the day, and not look for the Roberts-lite model who carefully eschewed ever expressing anything noteworthy all in the name of confirmation expediency.

This would take boldness, a boldness to find and tap a nominee with a clear and established liberal record, and stand by him or her while all the stones and rocks are being thrown, and the ensure their confirmation with numerous cowardly senators looking for cover.

55 or older need not apply

This consideration is the easiest to delineate. Simply that Obama should look very closely at the age of a prospective nominee, and he should reject certain choices if they are too old. While it is impossible to pinpoint the "right" age of a choice, I think that Obama should nix any one who is over 55 years old, if not 53.

As demonstrated above, the liberal core today is way too old, especially when compared with the conservative bloc of Roberts, Scalia, Thomas and Alito. Appointing an older nominee over 55 or perhaps closer to 60 would do very little to help begin to put in place a liberal bloc -- and thus a liberal legacy -- for the new President. Should Obama put on some one in the late 50s, that person might end up retiring before Roberts and Alito despite being tapped some years after those choices. Such a possibility should be untenable for Obama and his brain trust.

As a result, many of the people supposedly on the President's list should be axed. Others on the cusp of 55, including both Sotomayor and Obama friend and famous law professor Cass Sunstein are right on the our line, and that fact should be given strong consideration. In my view, the closer a credible possibility is to the good side of 50, the better.

This mean seem overly-simplistic, and thus kind of silly; I can understand that. But the fact is that if Obama wants to make an impact on the Court, and begin to remake the Court's makeup, he cannot go with a nominee who won't be around Washington for at least a generation. The change to remake a new Court in the mold of the Warren Court -- or whatever you'd like to call it -- is going to take many years and many changes on the body, and thus can only be ensured with truly young, new blood.

The Time is Ripest

The third key reason for Obama to make a bold (and liberal) selection is that the current national political environment and the makeup of the Senate are more advantageous for Obama to make such a move than they have been in decades, and they may not be this favorable to a Democratic President again for 100 years.

For one thing, Obama today enjoys impressive approval ratings, and they have remained steady for some time. Sure, those numbers won't stay in the 60s forever, but right now -- and likely for the near future -- they are solid, and as a result, Obama has a good deal of political capital to spend. And there are few areas of greater importance today that the U.S. Supreme Court.

Second, is the composition of the Senate, where Democrats have a very large majority which verges on 60 votes -- the number needed to turn off Republican filibusters. With Arlen Specter's high-profile switch earlier this week, Democrats now sit at 59, and it is likely they will get to 60 whenever Al Franken is seated, an eventuality I think will occur at before Obama's nomination is ultimately voted on. It's not every day that a President enjoys a 60-seat majority in the upper chamber, and Obama would be crazy not to take advantage by putting on someone with unquestioned liberal credentials as opposed to a moderate who he hopes could garner a couple of Republican stragglers.

Make no mistake: basically irregardless of any nominee Obama will pick, Republicans will strongly object and fight. Even if Obama picks the most uncontroversial, moderate jurist, he can expect nearly every Republican Senator to vote 'no.' The judicial wars have become too partisan, and much too important for Republicans to ever strongly support any high Democratic nominee, whether it be for the Supreme Court or for an important seat on a circuit. Obama can expect incredible opposition for just about any of the names being bandied about, as well as others not being considered.

Judicial nominations today are the golden issue for the Republican base. During the second Bush administration, GOPers returned to the issue time and again as a means of ginning up their base -- using endless fundraising appeals, and who can forget the "Justice for Judges" Senate marathon where Bill Frist halted all business to have the Senate discuss a handful of judicial nominations for 50 hours straight? -- and bashing Democrats as "obstructionist." This is because many conservatives view the judiciary, and the High Court especially, as a crucial place of focus, and that the ability to place strong conservatives on the Federal courts is the key step towards undoing Roe v. Wade and other decisions they view as abominations. With Republicans no longer in control of the confirmation process -- GOPers had a robust 55-seat majority in 2005, allowing them to easily place Roberts and Alito on the bench with little trouble or resistence -- they may not be able to stop Obama's nomination, but they sure as heck will object, if for no other reason than to reinvigorate their base after long strings of bad electoral news.

Unfortunately for Republicans, none of that should matter since, as the vote-count below demonstrates, Obama should be able to get 51 votes for confirmation (we will get to the filibuster question afterward).

Counting the votes

Let's go through the entire Senate roster and determine how a vote might look for any Obams SCOTUS nomination

Absolutely, positively 100% sure to vote for any choice
Daniel Akaka (HI), Mark Begich (AK), Michael Bennet (CO), Jeff Bingaman (NM), Barbara Boxer (CA), Sherrod Brown (OH), Roland Burris (IL), Maria Cantwell (WA), Ben Cardin (MD), Tom Carper (DE), Bob Casey (PA), Chris Dodd (CT), Richard Durbin (IL), Russ Feingold (WI), Dianne Feinstein (CA), Al Franken (MN), Kirsten Gillibrand (NY), Kay Hagan (NC), Tom Harkin (IA), Dan Inouye (HI), Tim Johnson (SD), Ed Kaufman (DE), Ted Kennedy (MA), John Kerry (MA), Amy Klobuchar (MN), Herb Kohl (WI), Frank Lautenberg (NJ), Patrick Leahy (VT), Carl Levin (MI), Joe Lieberman (CT), Claire McCaskill (MO), Bob Menendez (NJ), Jeff Merkley (OR), Barbara Mikulski (MD), Patty Murray (WA), Bill Nelson (FL), Mark Pryor (AR), Jack Reed (RI), Harry Reid (NV), Jay Rockefeller (WV), Bernie Sanders (VT), Chuck Schumer (NY), Jeanne Shaheen (NH), Debbie Stabenow (MI), Jon Tester (MT) (facing a very hard re-elect in 2012, but I think he hunkers down on this vote), Mark Udall (CO), Tom Udall (NM), Mark Warner (VA) (moderate freshman, but hard to see him opposing), Jim Webb (VA) (facing a difficult challenge in 2012, but he's his own man), Sheldon Whitehouse (RI), and Ron Wyden (WA).

Naturally, some of these votes will be weaker than others. Begich was just elected in red Alaska, barely beating Ted Stevens, but he does not face the voters again until 2014. Bennet could also face a tough race next year, but I can't see him bucking the President. Hagan is from North Carolina, but she won by nine points, and Pryor just won a second term unopposed. Warner just won his first term with incredible ease. The two hardest votes could be Tester and Webb, as both face potentially rough races in 2012, but both of their temperments -- tough as heck -- and political outlooks (mostly socially liberal) are precisely the kind to back the President on a tough vote like SCOTUS.

The total from this list comes to 51 votes, a exact majority needed for confirmation, and we have not even gotten to the nine weaker Dem votes. Those are Max Baucus (MT), Evan Bayh (IN), Robert Byrd (WV), Kent Conrad (ND), Byron Dorgan (ND), Mary Landrieu (LA), Blanche Lincoln (AR), Ben Nelson (NE), and Arlen Specter. Of these, I would expect Conrad and Dorgan to vote 'aye', even though they are from North Dakota; both are usually stand-up votes. Ditto Bayh, despite his strange push to the center of late. Lincoln is facing re-election next year, so who knows? Byrd and Landrieu are entirely unpredictable, and Nelson and Specter could certainly vote against since they are probably the two most Republican-leaning Dem votes in the Senate. And these are conservative estimates; the point being that cobbling together a simple majority for any nominee should be imminently doable.

On the GOP, we can pencil in just about every one of them voting 'no' regardless of the nominee. Senators Collins, Lugar, Snowe, and Voinovich could possibly vote for some nominees, with Snowe and Collins voted for any female nominee, in my opinion. That makes, by my count, 36 GOP Senators who are guaranteed 'no' votes for the Souter replacement.

Filibuster trouble?

Which leads us to the $64,000 question: could Obama's nominee by filibustered? It seems clear me that any Obama nominee will able to muster a majority in the Senate despite the presence of many moderate Democrats and others who face tough re-elections over the next two cycles. Therefore, the most troubling thing that could derail his nominee's chances in the Senate would be a Republican filibuster aimed at bottling up the nomination. To properly assess this possibility, we should look at two issues: first, the chances of Republicans deciding to mount a filibuster, and second, whether or not they could find any Democrats to join the filibuster in order to ensure that cloture -- three-fifths of the body -- can not materialize.

To be candid, a Republican filibuster of Obama's nominee would represent the absolute height of political hypocrisy. When Bush II was in office, and Republicans reigned in the Senate, they screeched and howled when Democrats held up a small handful of Bush's nominees to the courts of appeal. Bush himself as well as Republicans in the Senate led by then-Majority Leader Bill Frist assailed the blocking and called Democratic use of the filibuster to bottle up judicial nominations against Senate rules. In turn, they threatened the so-called "nuclear option" which would have eliminated Democrats' filibusters and led to partisan warfare on the Senate floor even greater than that which pervaded the institution at the time (and today).

For Republicans to decide now today that filibustering judicial nominees is a-okay after decrying their use so vociferously would smack of hypocrisy and partisan double standards. Really, it would defy fair and reasoned explanation. Perhaps amusingly, despite all of that, I expect a great many Republican Senators to push using a filibuster on Obama's nominee. Times have changed since 2003-to-2005, and desperate times call for desperate measures. Republicans have lost over a dozen seats over the past two midterm elections. Today they sit at just 40, a small minority. Their options are very limited, and perhaps more important, their caucus is dominated almost entirely by strong conservatives who take glee in partisan batles and view the judicial nominations process as more vital than any matter other the Senate considers -- ground zero for the culture wars.

I think a great many Republicans, probably a majority of the current caucus will support a filibuster should they find Obama's choice particularly objectionable. To Republicans, even if a filibuster was doomed from the start, it would at least be a means of ginning up the party faithful on a favorite issue and perhaps improve immediate party fundraising. And we all know that in light of the recent "tea parties" and subsequent activities, elected Republicans are today not averse to playing solely to their hardcore supporters.

Whether or not Mitch McConnell and the GOP leadership would be able to convince their entire caucus to support a filibuster is another matter. While the 40-Member caucus is nearly entirely right wing, there would be no margin for error here: McConnell would have to convince every person in his caucus to filibuster, and then go and find at least one Democrat to join in. The first matter would hardly be guaranteed, mostly because of the presence of Olympia Snowe and Susan Collins. That McConnell could arm-twist and cajole his caucus into being united against Obama's choice is not a possibility I would dismiss; in fact, I believe he could do it, simply by appealing to their diminished status. However, the hardest part might be getting the Maine twins on board, and I think their support for filibuster would depend solely on the specific nominee; in other words, they would not be a sure filibuster vote regardless of nominee as a Tom Coburn or Jim DeMint would be.

To be frank, if Obama ends up nominating a woman, I can't see Snowe and Collins voting against her confirmation, much less voting to uphold a filibuster. This is especially true if someone like Sonia Sotomayor is the pick. But let's assume that Obama nominates a very established male liberal for the post, and as a result, not only do Republicans mount a filibustering effort, but that Snowe, Collins, Lugar, and Voinovich all jump on board. If all of that happens, I still think a filibuster would fail. It would fail for the simple reason that I can't see even a single Democrat voting with Republicans to block a nomination.

Even the most unscrupulous, self-interested pol would have a hard time bucking his leadership and the White House and go support a filibuster. Should a Member decide that he or she can't vote 'aye' for one reason or another, they can always vote against confirmation in the end (assuming their vote is not vitally needed). But they would be forbidden from filibustering. In terms of the most dangerous possible switch-over, Arlen Specter, I find very hard to envision him casting one of his first big votes as a Democrat to filibuster a Supreme Court nominee and thus embarrass the President. Such a move would assure Specter of a nasty primary fight -- something he would just as soon avoid now. If Specter has any political sense, he wont do something so foolish.

As a result, I don't see a filibuster as particularly viable, or at all likely to succeed even if the Republicans are united. What this means is that Obama has the ability to make a bold choice for Souter's replacement, and he should almost certainly have more than enough votes to assure confirmation. Given this reality, he should be timid in who he decides to nominate.

Conclusion

I set out to write this little piece mostly because I've been hearing the name Sonia Sotomayor for some time, and I find her potential nomination both uninspiring on a personal and political level. Sure, Sotomayor is the "obvious" choice because she is a woman, she is Hispanic, she has a nice life story and a great pedigree, and she sits on a respected appellate court, therefore making her nomination both ground-breaking and completely viable.

Yet, I think Obama can do better, much better. In my amateur legal view -- I did not go to Hah-vahd, I did not clerk, and I am not one of those lawyers who likes to tell people in casual conversation that I was on the law review (in part because I wasn't!) -- Sotomayor is legally undistinguished, and has written few noteworthy opinions and even fewer legal articles which espouse anything bold. And this does not only apply to Sotomayor, but to numerous appellate court judges who are likely being considered and are today being mentioned in the many articles pervading media and cyberspace.

The fact is that is I view the U.S. Courts of Appeals as a judicial Senate of sorts. It is full of smart, and super-ambitious judges who dream of perhaps one day sitting on the High Court, much in the same way that many senators dream of sitting in the Oval Office (though, to be fair, I think all senators dream of being President). As a result, many of these judges are incredibly meticulous in writing narrow, vanilla opinions and articles in hopes of never saying anything controversial while at the same time perhaps attracting the attention of a White House counsel or someone at People for the American Way who could push their name as a confirmable Justice one day. This view well describes some of the Court today: certainly John Roberts and maybe Stephen Breyer. And these are precisely the names that Obama should not seek to duplicate.

For one thing, nowhere in the Constitution does it require that a Justice by a former judge on a Federal circuit court, despite the fact that that is where most Justices now come from. Additionally, Obama does not have to pick someone who is over 55 years old. Being old is not a constitutional prerequisite.

From the liberal perspective, what the Supreme Court most needs now is an intellectual thinking capable of leading a new bloc and generating new ideas for the new century. If it were up to me, I would pick someone like Noah Feldman, a 39-year old Harvard Law School professor. Feldman is a brilliant legal thinker, and he has written and expounded on a host of legal topics of considerable significance. Yes, he has said many controversial things that would drive conservatives up a wall and lead to nasty (but nonetheless fun-to-watch) confirmation hearings, but he's a true intellectual, and perhaps most important, he could serve for 40 or more years.

I just use Feldman as an example of what I think Obama should look for: a bold, smart selection. Realistically, Obama is not going to pick Feldman because he is too bold, and also because he wants to tap a minority candidate or a woman. But from a political standpoint, it is my hope that Obama, a former constitutional law professor with perhaps a greater appreciation for the judicial process than any President in recent history, will fully recognize the need to consider a new direction for his choice, and he won't take the default route of a court of appeals judge with a milquetoast record. Someone like Feldman who is being considered seriously is Elana Kagan. Given that she is under 50 years old, she might be the best option of the names today being circulated (though, the fact that she has been Solicitor General for around a month might complicate matters). Someone like Cass Sunstein -- a well known law professor, and also Obama friend -- would be good, but his age of 55 concerns me some.

I have no doubt that Obama is taking the issue extremely seriously. This is one decision where he is a super-expert in making a wise choice. But he should decide not to put someone too old on the Court. In this layman's view, 55 years old should be the high mark, if not even lower than that. And at the very least, he should not shy away from any choice simply because that person might be seen as too controversial because they've actually expressed their views in public.

If he wants, Obama can use this nomination as the first step towards finally finding for liberals their new judicial icon, both to replace what men like William Brennan provided, and to counteract the overshadowing work on Antonin Scalia, and now John Roberts. It's up to him whether he wants to be safe or bold.