[This article also appears on Huffingtonpost.com. You can access it from my author page here.]
The highlight of my three years in law school occurred on an elevator. Sounds odd, but it's true. During my second year, I spent 10 seconds traveling up one floor with the then just-retired Supreme Court justice William Brennan (he was teaching a seminar for third-year students).
It wasn't anything Brennan said during the ride (I think he greeted me with a smile and a nod), and it wasn't anything I said to him (as a terrified 2L standing three inches from his idol, the most I could muster was a wide-eyed nod back to him). It was just feeling fortunate that I actually got to meet someone I consider to be one of the greatest Americans ever to walk the face of the earth.
In law school, my favorite classes were those that dealt with constitutional law. I loved the subject matter, but one other benefit of that line of study was that you got to read a ton of Supreme Court opinions. So it is understandable that as the leader of the liberal wing of the Court for more than 30 years (interestingly, appointed by Republican Dwight Eisenhower in 1956), my admiration for Brennan was (and remains) unbounded.
With one of Brennan's successors as the liberal voice of the Court, John Paul Stevens (also, interestingly, appointed by a Republican, Gerald Ford), announcing that he would step down at the end of this term, I immediately began to wonder who would be appointed to Stevens' seat. Given the current political environment in Washington, I have no hope of a Brennan- or Stevens-like progressive getting the nod, so I was not surprised to read that U.S. Solicitor General Elena Kagan is an early favorite. While, of course, I would love to see a fiery progressive on the Court, ever one to be politically pragmatic, I have to admit that other factors are even more important to me.
The battlefield for Supreme Court issues used to be issue-based, whether the court would take a conservative or liberal view on questions such as affirmative action, voting rights, abortion, due process, etc. But in light of the Court's decision in Citizens United (I wrote about it here), as well as some of the other decisions of the extreme and activist Roberts Court that have bulldozed decades of settled law on questions fundamental to our democracy, every new justice now will have in his or her hands the task of beating back the excesses of the Roberts Court.
With that in mind, here is a list of the five factors (in no particular order) I would most want the president to consider when appointing Stevens' successor:
1. Just Progressive Enough. While I am at peace with the fact that the new Supreme Court justice will be to the right of Stevens, the new justice has to be liberal enough to fiercely oppose decisions like Citizens United (as I think any left-leaning moderate would). While times are different, it is interesting to note that not only were Stevens and Brennan appointed by Republicans, but current liberal justice David Souter was tapped by George H.W. Bush. When justices reach the Court, they can't help but be shaped by what they see going on around them. Any liberal-centrist justice exposed to the poison of the four right-wing extremists will, I believe, have no choice but to move to the left. That's my ideological bar for this appointment: Just liberal enough to be outraged by the philosophies of Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito.
2. Confirmable. From reading the HuffPost piece on Kagan, it appears that the Obama administration doesn't want a fight over this appointment, believing it more important to save its ammunition for the legislative battles that lie ahead. As much as I think Supreme Court appointments, which can impact the country for decades, are amongst the most important actions a president ever takes, I can't really disagree with the White House's strategy. And I think there is an opportunity for some political hay to be made with this appointment. If Obama chooses a moderate with a squeaky clean record, a limited amount of published legal writings or taped speeches (to avoid a "wise Latina" gotcha moment), and unquestioned qualifications for the job, and Senate Republicans oppose the nomination (if the 41 GOP senators stand together, they can filibuster the selection), it only reinforces the argument that the Republicans are obstructionists with nothing to offer the American people (the ultimate Party of No).
3. Strong Voice. Obama's selection doesn't have to be as liberal as Stevens or Brennan, but he or she has to be as strong as they were. As I said, the Roberts Court is on a dangerous road, threatening Congress's ability to pass laws in a variety of areas. It won't be enough for the new justice to sit quietly and vote. He or she must be a strong voice in opposition to the four activist right-wingers.
4. Don't Rob Peter to Pay Paul. In the past, the Obama administration has been quick to appoint sitting senators for executive branch positions, a strategy that will be tested in the 2010 midterm elections when some of those seats go before the voters. (On his biggest pick of all, vice president, the Democratic seat in Delaware is almost surely going into Republican hands.) Given the challenges Democrats face in November, now is not the time to be creating more obstacles. I have seen Sen. Amy Klobuchar of Minnesota floated as a possibility to be Stevens' successor, and while I'm a huge admirer of hers, I would be strongly opposed to her selection. It wouldn't be because of her qualifications, since I'm sure she would make a great justice. It would be because she holds a senate seat from a state that has a Republican governor (who would appoint her successor), and she is not up for re-election until 2012. There is no reason to risk a senate seat to fill a Supreme Court vacancy.
5. Youth. Even if a candidate perfectly fulfills the first four criteria I listed, I would not support the pick if he or she is over the age of 60 (or, really, even 55). Supreme Court justices serve for life, so the younger the justice is at the time of his or her appointment, the longer he or she can have an impact on the Court. One of the most disturbing things about the Citizens United decision is that two of its architects, Roberts and Alito, are only 55 and 60, respectively. George W. Bush's disastrous presidency may be over, but his activist right-wing judicial philosophy will go on for decades in the hands of Roberts and Alito. So Obama has to do the same thing. He needs to appoint someone who could conceivably spend 30-plus years on the Court, providing a solid (at a minimum) mainstream (if not progressive) foundation.
After assembling my list, I was happy to see that Kagan seems to meet all five of the criteria pretty well. But whoever is ultimately tapped by Obama, I hope he considers these five factors in making the appointment. Choosing a Supreme Court justice may fly a bit under the radar of the average American, but, in practice, there are few things a president does that has the same kind of long-term impact on the country.