Justice Souter’s pending retirement provides President Obama an immediate appointment to the Supreme Court. Elections matter. With 60 seats in the Senate, and overwhelming momentum from November’s election, President Obama has in essence carte blanche to appoint whoever he wishes.
Republican opposition may be loud, but essentially ineffectual. In addition, since a liberal will replace a liberal, the opposition will mostly be for show, as it was with the nominations of Chief Justice Roberts and Justice Alito.
Let us look therefore at the President’s criteria for the new Justice. He has laid out four major ones:
1) “Someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook;”
2) Someone with empathy for peoples’ hopes and struggles;
3) A sharp and independent mind; and
4) A sense of compassion.
Let us also assume that the odds favor a woman appointee from a minority background. We are never bound though to play the odds. We dislike conventional wisdom in politics, whatever it may be.
Note elsewhere that President Obama, as well as many Senators, express a preference for one who lived a diverse life experience. That would, of course, exclude a hermit from New Hampshire.
With these criteria in mind, the possibilities soon present themselves.
A justice of the people is African American Congressman Alcee Hastings of Florida. Alcee served as a federal district court judge for a decade from 1979-1989. He has continually served in Congress since 1993. He is therefore from the People’s House. His college education was at Fisk University, Howard University, and a law degree from Florida A & M. All three are historically Black universities. .
Alcee’s only blemish in a long career of public service is that the Democratic House of Representatives voted to impeach him in 1989, followed by the Democratic Senate voting to convict him, thereby removing him from the judiciary, but not disqualifying him from Congress. Alcee’s indiscretion was corruption, but presumably he has learned from his youthful indiscretion. He voted against impeaching President Clinton
One of his supporters in the Senate could be Democratic Senator Arlen Specter, who voted against Judge Hastings’ conviction.
If humility is a qualifying factor, then let us look at Professor Kathleen Sullivan, Stanley Morrison Professor of Law at Stanford. She has truly impeccable academic credentials, with degrees from Cornell, Oxford (Marshall Scholar) and Harvard Law School. She served as Dean of Stanford law School from 1999-2004. Few law school deans have ever made it onto the Supreme Court.
With the resignations of the Stanford Twins, Chief Justice Rehnquist and Justice O’Connor, from the Supreme Court, a strong argument exists for another appointee from Stanford.
Her biggest qualification though is a public act of humiliation four years ago. Professor Sullivan failed the California Bar Exam on her first sitting.
However, as a Constitutional Law expert, she has probably read too many footnotes and delved too deeply into abstract theory. She has filed many briefs with the Supreme Court on cases involving gay rights.
Another highly qualified academician is Professor Catharine MacKinnon, the Elizabeth A. Long Professor of Law at the University of Michigan. Her father was an appellate judge on the District of Columbia Circuit Court of Appeals from 1969-1995.
Her nomination would be a great spectator sport as the decibel levels rise to record levels as Rush, Sean, Glen, and Ann fulminate.
Her academic credentials are also outstanding with degrees from Smith College and Yale Law School. She is a pioneer in women’s rights, especially in sexual harassment and pornography. She may not have read many footnotes, but she certainly penned many pioneering ones. Her views have, at least, been adopted in Canada.
She would however be a more suitable replacement for Justice Ginsburg when that seat opens up.
Liberals have always been displeased with the appointment of Justice Clarence Thomas to the Court. A counter balance to him would be the nomination of his former colleague, Professor Anita Hill. Her degrees are from Oklahoma State and Yale Law School. She currently teaches at Brandeis, and speaks truth to power. I do not recall anyone from Oklahoma ever serving on the Court.
Since neither a law degree nor even a license to practice law is a constitutional condition of appointment to the Court, the perfect representative of the people is Professor Ward Churchill of Colorado. Ward is a self-proclaimed Native American, perhaps of several tribes, and just won his own lawsuit in federal court, giving him more court room experience than many justices.
His bachelor's and masters 'degrees are from Sangamon State, now the University of Illinois at Springfield. He has climbed a long way from his humble roots.
Ward is also not bound by the printed text of any document, much less the Constitution.
Governor Jennifer Granholm of Michigan, with degrees from Berkeley and Harvard Law School, is another often-mentioned candidate. She is a representative of a distinct, and yet to be recognized minority in the United States, Canadians. As a Canadian, she is too worldly to be bound by the United States Constitution, but would look approvingly to international law. She would also, undoubtedly, be the only Justice who ever worked as a tour guide at Universal Studios in Los Angeles.
Unions would strongly support her because she has shown she will sacrifice taxpayers to the public unions. That the Great State of Michigan has collapsed on her watch should not disqualify her because failure never disqualifies liberals.
Vice President Joe Biden though is as close to a perfect selection as possible. He is truly of the people. From humble beginnings in Scranton, Pennsylvania, to college at the University of Delaware, and law school at Syracuse, where he graduated in the bottom 10% after readmission for plagiarism, he truly understands the common American. Reading from a text has never been a constraint for him, and he undoubtedly missed all those casebook footnotes at Syracuse.
No one who has ever sat through a long Biden discourse will doubt his independent, uncontrollable thinking.
No Fightin’ Blue Hen from Delaware has ever served on the Court.
No way can today’s Justices understand, much less empathize with, the commoner, since the current court consists of 5 ½ graduates of Harvard Law School (Justice Ginsberg transferred from Harvard Law to Columbia for personal reasons), 2 grads of Yale Law School, and one from Northwestern. Syracuse Law would bring a leveling influence to the Court.
Joe is as empathetic of the common American as any politician in America. He wears empathy on his sleeve. He is probably the first common man since President Andrew Jackson to be President or Vice President.
As a Senator for 36 years, and as Chair of the Senate Judiciary Committee during the contentious Robert Bork and Clarence Thomas Hearings, he would undoubted remind his former colleagues that none want to relive those experiences. Thus, Senatorial courtesy would allow him to cruise to an easy confirmation vote.
SCOTUS would also get Vice President Biden out of the White House, or at least the West Wing, where he is again proving to be a verbal embarrassment to POTUS.
After mocking Chief Justice Roberts for flubbing the administration of the Oath of Office to President Obama, the Vice President flubbed it a few days later in swearing in Secretary of State Hillary Clinton.
Just a few days ago, he advised Americans not to fly or take subways because of the fear of the Swine Flu. In the case of a major pandemic, staying away from crowds is a major control on the spread. Mexico essentially shut down in recent days to contain the spread.
However, Biden’s advice is damaging to the already suffering travel industry, and was not on key with the President’s message.
Vice President Biden would be right at home on the United States Supreme Court. He meets all of President Obama's stated criteria for the exalted position.