Who Should Obama Nominate?

April 15th, 2010 by rubenr

When it comes nominating someone for the Supreme Court, there are two possible routes for President Obama: He can appoint someone unabashedly liberal, or he can go with someone a little more reserved and possibly moderate.  So what should he do?

Some have pointed out the political implications of the decision, and how appointing someone “too liberal” could alienate voters in the midterm election, and create a rallying cry for Republicans and Tea-Partiers.  But let’s be honest, that rallying cry is going to exist no matter who gets appointed.  We’re talking about a political atmosphere where a largely free-market driven healthcare reform package, supported by numerous economists and the healthcare industry, gets attacked as a socialist government takeover.  To political opponents, whoever gets nominated will be “too liberal”, and Obama’s shortlist is well-experienced and respected enough to make it through Senate Confirmation.

Furthermore, weighing the implications of a single election cycle in determining a Supreme Court nominee is silly.  The Supreme Court has tremendous power relative to any single session of Congress, and it has consistently been the source of incredible changes in our society.  It is the last line of defense to protect minority rights from the tyranny of the majority.  This is the body that invalidated segregation, gave defendants the right to legal counsel, and women the right to choose.  It’s also the reason we have any sort of monetary policy or regulation of commerce.

All that said, Obama’s got a decent list of well qualified folks who could go toe-to-toe with the current conservative-leaning court.  I’m personally a fan of Diane Wood, she has a few “outsider” characteristics (educated at the non-Ivy University of Texas, lives in Chicago unlike most of the east-coasters on the court) and she’s a brilliant jurist who has experience building consensus with those she disagrees with on the 7th Circuit, including two of the greatest conservative/libertarian judges of our time: Frank Easterbrook and Richard Posner.  By all accounts Judge Wood is respected by her cohorts and would do a fantastic job on the court.

Obama could go with someone younger to maximize the time his nominee sits on the court (as Bush did with Roberts), but I’m a fan of quality over quantity.

An interesting point of irony, it’s possible that whoever Obama nominates, given Justice Steven’s “liberal” record (In the 70’s he was considered a moderate conservative… ponder that for a moment), he might continue moving the court further to the right.

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