Obama’s nominations will be liberal, but not in the conventional sense
For better or for worse, people will view it as historically significant,” mused Harvard Law Professor Randall Kennedy on the election of the Harvard Law Review’s first black president in 1990. Less than two decades later, the student in question has once again been thrust into the spotlight of historical significance; Barack Obama may soon have the chance to exercise his rigorous legal training by selecting new nominees for the Supreme Court of the United States. Indeed, though he may not have the chance to sway the ideological balance of the Court, consensus in the legal community strongly suggests Obama’s intensive academic experience in law creates a rare opportunity to see the nomination process work as it should.
A Liberal Exodus?
Of course, none of the sitting justices have thrown in the towel just yet. Retirement rumors tend to center on two current justices: John Paul Stevens and Ruth Bader Ginsburg. At the ripe age of 88, Stevens is two years shy of breaking the late Oliver Wendell Holmes’s record as the oldest justice to serve the Court. But Stevens’s advanced age notwithstanding, Harvard constitutional law professor Richard Fallon told the HPR, “He is in wonderful health, loves his job and there’s no reason to expect that he’s eager to retire.” Indeed, though Stevens has more than a decade on the 75-year-old Ginsburg, she is often cited as the one most likely to retire due to several recent health scares. A third and less discussed potential vacancy is the seat of Justice David Hackett Souter. Though his 69 years render him comparatively spry, common knowledge holds that Souter dislikes the D.C. life and that this could prove a most potent rationale for retirement.
If and when any of these Justices retire, Obama will be replacing a liberal member of the Court. Though “liberal” and “conservative” tend to be crude proxies of jurisprudential philosophy, Justices Breyer, Stevens, Ginsburg and Souter form a minority bloc that tends to swing left on key socially charged issues such as abortion and affirmative action. Thus, even if Obama were given the opportunity to replace all three, he would not be tipping the ideological balance currently anchored by a solid conservative majority composed of Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, Clarence Thomas, and Anthony Kennedy.
Because all of the likely retirements are in the liberal minority, and few key socially charged issues ride on the Obama appointments, the nomination process will be vulnerable to a bout of identity politics. For example, in light of Sandra Day O’Connor’s retirement in 2006, the legal community has been predicting a female appointment as Ginsburg’s likely departure creates a tangible pressure to fill the gender vacuum. Age also presents a demographic category laden with political implications. Even if Obama were not to transform the ideological balance of the bench, he would do great service to the liberal camp by replacing the current minority bloc with a pack of relatively young and energetic personalities likely to stay on the Court at least as long as Roberts, 53, and Alito, 58.
A Different Standard
Without doubt, these political pressures would exist for any president with the opportunity to make the first Democratic appointments since 1994. But Obama’s extensive experience and pristine credentials in academic law suggest his nominations may be more than political plays. The first sign of his exceptional legal mind came as president of the Harvard Law Review, widely acknowledged as one of the most esteemed positions a law student can hold. After graduating, Obama moved on to be a senior lecturer at the University of Chicago, where he taught a variety of courses including “Constitutional Law III: Equal Protection.” Speculating as to how Obama’s academic experience might affect the way he chooses nominees, Fallon noted, “President Obama, trained and steeped in constitutional law, is more likely to have a much more nuanced understanding of the way that judges actually decide cases and is actually more likely to be impressed or unimpressed by what he takes to be the power of a person’s legal mind and analysis, the subtlety of his or her reasoning, and methodological consistency.” A more concrete way to assess Obama’s decision, according to Jonathan Hacker, an appellate practitioner and partner at O’Melveny & Myers, is in a candidate’s “jurisprudential outlook.” More specifically, Hacker told the HPR, “nominating men and women with very sophisticated, intelligent approaches to the law doesn’t necessarily make it an ideological decision at all. [Obama] will likely look for those who share his general outlook, which is a liberal one, on how the constitution is interpreted and what sort of tools the judge brings to decision making.”
Irv Gornstein, a former Assistant to the Solicitor General who has argued nearly 40 and briefed more than 60 cases for the Court, told the HPR that this nexus between legal philosophy and everyday politics is captured best by the Court’s opinion in United States v. Carolene Products. The decision ended an era of judicial activism, but invidious prejudice, the Court opined in a famous footnote, threw a wrench in the American political process when it came to “discrete and insular racial and religious minorities,” and justified “more searching judicial inquiry” in cases of extraordinary unfairness. “He’s going to want somebody that lives and breathes that footnote,” Gornstein concluded, “someone who believes that the role of the Constitution is to stand up for the underdogs who get shut out of the democratic process.” On the campaign trail earlier this year, Obama lauded the memory of former Chief Justice Earl Warren for precisely these reasons. Warren’s ability to step outside of his privileged life and denounce school segregation in Brown v. Board of Education embodied his ideal nominee: “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through.”
Empathy, of course, comes in many a form and fashion. Regardless of how profoundly their jurisprudential outlooks resonate with the Carolene footnote, Obama’s nominees will face the not-so-empathetic Senate confirmation process, and the Democrats failure to grab a filibuster-proof 60 seats in November may constrain Obama from reaching too far from the center. Both Gornstein and Jeremy Maltby, a leading appellate practitioner and former clerk to Justice Souter, agree that Obama’s nominations will likely not be as far to the left as President Bush’s appointments were to the right. In any case, Obama’s nominees will have proven a willingness to fight for those systematically disadvantaged by the political process and will have earned a set of legal credentials beyond reproach. In this sense, Obama’s nominees will share his signature brand of liberalism: undoubtedly left-of-center, but calibrated by both an extraordinary capacity and tremendous respect for legal reasoning.