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The Bold StandardWanted: a visionary minimalist for the U.S. Supreme Court.

By Dahlia LithwickPosted Saturday, May 23, 2009, at 7:41 AM ET

Read more from Slate's coverage of Sonia Sotomayor's nomination.

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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 7^th 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.