Wanted: a visionary minimalist for the U.S. Supreme Court.

The law, lawyers, and the court.
May 23 2009 7:41 AM

The Bold Standard

Wanted: a visionary minimalist for the U.S. Supreme Court.

US President Barack Obama. Click image to expand.
Barack Obama

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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.

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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.

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