The Obama Court
» Salon: Ten picks for Obama's Supreme Court
Names to know for the most immediate SCOTUS opening. First up, the estrogen, legal eagle set:
- Sonia Sotomayor
- Elena Kagan
- Diane P. Wood
- Leah Ward Sears
Sotomayor, Sears and Kagan look like obvious heavy-hitters on this list while also adding some instant diversity. Sotomayor looks like a cinch for confirmation since there's bound to be some GOP Senators who voted for her confirmation by George H.W. Bush, but I can't say I wouldn't mind a slight poke in the eye with Kagan avenging her stalled nomination by Clinton. Sears would bring the momentary oddity of watching Zell Miller potentially say something nice about a Democrat.
The Electeds ...
- Deval Patrick
- Jennifer Granholm
On principal, I'm not crazy about either. In this case, neither has served in a judicial capacity. If, on the other hand, I were to have a gun put to my head and forced to choose, I probably would prefer Patrick. But much of the reasoning has more to do with what type of Governor and campaigner each has been (Granholm dull, Patrick not) than it does anything else.
The Rest ...
- Merrick Garland
- Cass Sunstein
- Harold Hongju Koh
- Ruben Castillo
From this group, I'm all in favor of Sunstein. For precisely some of the reasons that some Democrats/liberals dislike him, I feel more secure in advocating his name. That said, my hunch is that he's the new Lawrence Tribe. His paper trail is too long and I'm guessing it's easier to suggest something derogatory from a tilted reading of his work somewhere. The rest, it's more a question of familiarity - or, more specifically, a lack of familiarity.
The article drops five names for possible replacement, including the possibility of Scalia. Boy, that's tempting to think about. Just a shame that his entertaining, extra-Constitutional reasoning will be missed from the rare reading of SCOTUS opinions. What will I read for comedic effect then?
It'll be interesting to see how fast some of these names cycle out of rotation. Obama will likely have some quick appointments to the appellate courts that will serve as names for later rounds of consideration. I can see a couple of these names lasting in the hopper for eight years, but I doubt all of them will.
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Did you read about Scalia's speech here in town last week? First he talked about the importance of strict constructionism, then he made jokes about how he gets around it whenever he needs to -- but still pretends to be a strict constructionist.
My own take is that virtually no one active in party politics today, Democrat or Republican, wants to follow the Constitution. They give lip service to it until they find it convenient to ignore it -- such as with the bailout, which is totally unconstitutional.
This points to the problem of giving so much weight to the authority of the Supreme Court: it allows presidents and congressmen to think that following the Constitution is someone else's job. The Founders never intended the court to have judicial review; they intended it to be the weakest branch. Now we give it so much authority, gay activists in California are trying to overturn an entire election in court! When courts can overturn elections, democracy is dead. Not dying: DEAD.