Read more from Slate's coverage of Sonia Sotomayor's nomination.
To the extent Supreme Court reporters have any social utility at all, they're awfully useful when high-court vacancies pop up. Suddenly, everyone in the carpool wants to see your shortlist. But sadly, all the insider knowledge in the world—about the brightest lights on the appeals courts or the rock stars of legal academia—tells us almost nothing about who will replace Justice David Souter on the high court in October. For that, you need an MRI machine. Because I'd wager that the most interesting infighting about the Constitution and the courts right now is taking place between the two hemispheres of Barack Obama's brain.
The latest reports out of the White House have a senior administration official explaining on Thursday that when the president invokes empathy, he really means imagination—"a capacity to relate to real world experiences, a capacity to bring, when relevant, nonlegal perspectives into the court." The latest murmurings also suggest the president is looking for a persuasive writer and thinker who "can help tell a new story about justice and civil rights and the law to the American people." If it sounds slightly schizophrenic to be seeking a legal outsider who's also an insider, someone who can have "real life experiences" as well as a lofty constitutional vision, a person with "imagination" and rigor, that's because it is.
Obama has said he is a great admirer of Earl Warren, Thurgood Marshall, and William Brennan. He said that right before saying, "That doesn't necessarily mean that I think their judicial philosophy is appropriate for today." The pragmatic Obama needs a savvy tactician who can knit together a fractured court. But the epic Obama wants a visionary who will reflect his own constitutional views
What to choose, what to choose? I'm thinking he's sorely tempted by epic.
We already know that as a former constitutional law professor, Obama cares deeply about the courts. We also know, as press secretary Robert Gibbs confirmed last week, when it comes to picking the candidate, "this is a decision that he alone will make." This is not a choice farmed out to advisers, and it's not a decision constrained by national security or the demands of the military. Unlike the constitutional wobbles, dodges, and reversals—on military commissions, torture photos, and allegations of state secrets—Obama is rather free to be Obama on this one.
Unconstrained by circumstances, Obama has the chance to be bold with this decision. He has the opportunity to name someone who will deliver a much-needed defibrillating to the intellectually exhausted left wing of the court and a shock to the courts of appeals. Everyone—including me—expects centrist Obama to name a respectable incrementalist to slide into Souter's respectable incrementalist shoes. But I am increasingly apt to wonder whether he might just shock us all in the coming days with someone ready to take up the mantle of Thurgood Marshall and William Brennan, albeit with a millennial twist.
For one thing, Obama needn't fear the filibuster. He's got the votes to confirm whomever he wants. Moreover, it's now clear that a moderate, minimalist technocrat will face the same rump-blistering confirmation as a liberal nut. (Last week the Judicial Confirmation Network launched a series of ads trashing the moderate Solicitor General Elena Kagan, the more outspoken Judge Diane Pamela Wood of the 7th Circuit Court of Appeals, and the somewhat more outspoken Sonia Sotomayor of the 2nd Circuit in about equal measure.) The game of destroying Obama's nominee has little to do with the nominee eventually named. So why not make it interesting?
Consider that for all the president's talk of "empathy"—a term that's come to mean something different to everyone hearing it—Obama wasn't signaling his preference for a legal weeper. He wants justices who are capable, as he explained in The Audacity of Hope, of accepting "the possibility that the other side might sometimes have a point." And as John Dickerson explained last week in Slate, empathy isn't merely the quality Obama most admires in a Supreme Court nominee. It's the quality he prizes most in himself.
Obama is at his most pragmatic and centrist when there's a compelling argument on the other side. In which case his decision about the Souter seat may turn on how much Obama "empathizes" with the political right on the role of the federal judiciary. Does he believe that conservatives' arguments—about the necessity of judicial restraint, the dangers of a tyrannical unelected judicial branch, or elitist judges voting their elitist preferences—have merit?
I don't think those complaints move him very much. When then-Sen. Obama voted against then-lawyer John Roberts' Supreme Court confirmation in 2005, he signaled an almost complete unwillingness to compromise about the courts, explaining that despite Roberts' qualifications, he had concerns about "the depth and breadth of his empathy" and the fact that throughout his career, Roberts chiefly used "his formidable skills on behalf of the strong in opposition to the weak." Although he agonized over the decision to vote against Roberts, Obama was unyielding in his claim that the high court plays a role in leveling the playing field between strong and weak. In his speech at the time, Obama didn't express the hope that he would someday come to appreciate Roberts' constitutional worldview; in fact, he openly rejected it. He said he hoped Roberts would someday come to embrace his.
Writing last week in The New Yorker, Jeffrey Toobin showed how prescient Obama had been, noting that after four years on the court, "in every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Obama, better than most of us, understood in 2005 that Roberts' neutral-sounding promises of minimalism, restraint, and humility brought real-world consequences for the powerless and the weak. I think he may be itching to even the field.
Where is the pragmatic, middle position between John Roberts' view of the courts and Bill Brennan's? Oddly enough, it's probably David Souter's, and the question is whether that will suffice for Obama. Last year, writing in the New Republic, Obama's trusted legal adviser, Cass Sunstein, described Obama himself using the Supreme Court as a frame. He called Obama a "visionary minimalist"—someone who combines a bold vision for the country with respect for political processes. Recognizing that the term sounds contradictory, Sunstein explained that Obama wants to push the country toward dramatic change, while forging ideological consensus and listening to all sides. Sunstein's imagery suggests that if there is one Supreme Court candidate who's both a bold seer and a pragmatic centrist, his name is Barack Obama. And that guy already has a job. But more pointedly, it suggests that neither a mere visionary nor a mere incrementalist may be enough to satisfy the president.
We'll know soon whether Obama favors a careful feather-smoother who can nudge Anthony Kennedy subtly to the left—a role for which Solicitor General Elena Kagan seems perfect—or whether he's inclined to tap an unreconstructed liberal with Scalia's ability to write for the ages—someone like Stanford's Pamela Karlan or Kathleen Sullivan. As the whispers and rumors of White House interviews continue, it sounds as though Diane Wood of the 7th Circuit is a front-runner in the visionary-minimalist-off. Wood has gone toe-to-toe with the brilliant conservatives on that court for years but managed to do it incrementally and without making it up along the way.
What Obama really wants is someone at the high court who can convince eight justices that 306 million other Americans matter as much as some dead Founding Fathers. As the interviews continue and speculation builds, it's hard to escape the conclusion that while Obama can compromise on a lot and listen tirelessly to the other side of every story, when it comes to the Supreme Court, the visionary minimalist might just opt for a visionary visionary after all.
A version of this piece appears in Newsweek.