As the nation prepares for an epic fight and perhaps even a quasi-constitutional crisis over Antonin Scalia’s replacement on the U.S. Supreme Court, an awful lot of people have an awful lot of opinions about the kind of justice Obama might want to appoint. Many of us argue that it’s long past time for a more geographically and religiously diverse Supreme Court. Progressive groups are asking for liberal visionaries and game-changers, in the style of William Brennan. Others want statesmen and politicians (Obama once said he would love to put an Earl Warren on the court) to temper the wonky insularity of the current crop. Others are just asking for some confirmable human. Seat anyone to the left of Justice Scalia and call it a win, they say. Fight for Justice Bryan Stevenson another day.
In light of all the judicial dreaming, it’s worth keeping one important thing in mind: Barack Obama actually has a very clear vision of what he wants in a jurist. He always has. Selecting a Supreme Court justice isn’t merely a chess game for this president; it’s about more than just getting someone confirmed. This is the culmination of his career-long reflection about the role of the courts and the law in American democracy. So Obama isn’t coming to this third big confirmation fight as a blank slate. When we talk about what may become his biggest legacy—a pick that could, if it actually were to go through, change the direction of the court in historic ways—it’s not as if he hasn’t told us what he wants.
Looking at Obama’s past statements and speeches about what he likes in a justice, a partial three-pronged portrait emerges of the type of person he envisions for the bench.
First is an issue that Obama has already seen litigated under the bright lights of an earlier confirmation fight. When Obama sought to replace David Souter at the high court in 2009, the principle quality he said he was searching for in a jurist was “empathy.” You will recall that he almost brought about Armageddon with the suggestion, and that even Sonia Sotomayor, his own empathetic nominee, disavowed that judicial value in her own hearings.
Still, he said it. In May of 2009, here’s how he described the subject in discussing the vacant Souter seat:
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
It wasn’t the first time he had talked this way. At a 2008 rally in Westerville, Ohio, then-candidate Obama made his views about his dream jurists perfectly clear.
I want my justice to understand that part of the role of the court is to look out for the people who don’t have political power. The people who are on the outside. The people who aren’t represented. The people who don’t have a lot of money; who don’t have connections. That’s the role of the court.
In May of 2010, when he named Elena Kagan as his replacement for Justice John Paul Stevens, he was careful to make the same point about her:
She has often referred to Supreme Court Justice Thurgood Marshall, for whom she clerked, as her hero. … [S]he credits him with reminding her that, as she put it, “behind law there are stories—stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law …” That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career …
What Obama described then, time and time again, was a judicial capacity to look outside of one’s own life experience and to use the levers of the law and Constitution to help the voiceless and afflicted. Despite the many accolades we are hearing about Justice Scalia this week, that is simply not what he was about. As Peter Shane put it in Washington Monthly, Scalia could be known for “punching down.” And whatever the glories of textualism, originalism, and judicial humility, the unvarnished truth is that women, minorities, workers, LGBTQ Americans, immigrants, voters, capital defendants, and many others did not live in a world that was better for Justice Scalia’s brilliant mind. And in that sense, Obama could have been describing his ideal jurist as the polar opposite of Scalia.
But there is a built-in constraint on Obama’s so-called “empathy standard,” and he has been equally clear on this, too: The president does not believe in liberal Scalias. In a 2008 interview with the Detroit Free Press editorial board, Obama described Earl Warren, William Brennan, and Thurgood Marshall as “heroes of mine.” But he qualified that mantra immediately: “[T]hat doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.” At the time, Obama laid to rest progressive hopes that he wanted a firebrand on the high court. It was different in the Warren Court era, he argued: “The court had to step in and break that logjam. I’m not sure you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today.”
Obama may be a constitutional law professor at heart, but he has been perfectly clear that justices shouldn’t be the drivers of social change, that elections matter. Again, we’re talking about the anti-Scalia in that he really believes that activist jurists, on either side of the aisle, usually do more harm than good.
OK so empathy, check. And nonactivist, check. But there is a third quality the president most esteems in a jurist: The ability to reach across the aisle and compromise. This was precisely what he celebrated in Kagan when he nominated her to replace Justice Stevens in 2010. As he observed in his remarks that day:
Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament—her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder.
He went on:
These traits were particularly evident during her tenure as dean [of Harvard Law School]. At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus. And she encouraged students from all backgrounds to respectfully exchange ideas and seek common ground …
I mention this because it strikes me that President Obama’s dream justice is the anti-Scalia in a third way. Scalia famously antagonized more than one of his colleagues with his sharp elbows and refusal to compromise. At the very least we can say that Scalia could have had more success with Sandra Day O’Connor, David Souter, and Anthony Kennedy had he gone with the “respectful exchange of ideas” and “common ground” methodology, as opposed to the “my way–highway” purist mode for which he was famed.
Filter each of these three qualities through your Build an Obama Jurist Machine, and it seems to me that the end product is quite easily identifiable: Each of these impulses argues for a nominee who looks and sounds a lot like, well, Obama. In other words, I suspect if Obama were to construct his platonic Scalia replacement it would be a Justice Obama—an idea floated just last month by Hillary Clinton. Obama has now proven twice with his Supreme Court picks—and many times with his lower court nominations—that empathy, restraint, and the ability to reach across the ideological aisle matter a lot to him. I would hazard that he’d pick someone temperate and restrained; and, this time around, utterly unconfirmable nevertheless.