Monday, May 04, 2009

Supreme Court Idol

If you think choosing by-election candidates is tricky, consider the minefield Obama faces in replacing outgoing Supreme Court Justice David Souter. Regime change at the White House is onerous enough as it is. Every favour has to be remembered and rewarded, applicants and supplicants line up for positions as the ancien regime is removed and replaced. Tax returns and titty bars have come back to haunt prospective placements in the new administration.

Hell, it makes the Beehive's hiring of purchase agents look spectacularly uncontroversial by any measure. But these administrative positions are transitory. Eight years maximum, then you're out. The Supreme Court is for life. Or as long as it is wanted. Consider it like a royal perogative with a non-fatal exit strategy, bounded by the sum of historical charters with which one gets to write in the margins.

So, who are the prospects? Obama sez he's looking for empathy with people's hopes and struggles. Fair enough, Democrat presidents have always gone for diversity compared with the GOP's old white man syndrome. Patrick Leahy, chairman of the Senate Judiciary Committee, wants to look beyond the current judiciary for real life experience.

Not that there's a dearth of talent in the Court of Appeal Circuit. Judge Sonia Sotomayor ticks a lot of boxes:
Of Puerto Rican descent, Sotomayor grew up in a housing project in the South Bronx, just a short walk from Yankee Stadium. She was diagnosed with diabetes at age 8. Her father, a tool-and-die worker with a third-grade education, died the following year. Her mother, a nurse, raised Sotomayor and her younger brother, who is now a doctor, on a modest salary.
On face value, that's great. The problem arises from the Catholic upbringing that goes with the Hispanic territory. Sotomayor attended Cardinal Spellman High School, which was equipped with segregated teaching and a full set of priests and nuns. Thing is, the Supreme Court does not need yet another Catholic. One more would present a two thirds majority.

Charlie Savage in the NYT mentions Judge Kim Wardlaw. The notable judgements listed on Wikipedia give a generally liberal flavour. For example, here's Roe v. City of San Diego:
In dissent, Wardlaw wrote that a police officer selling videos depicting himself engaged in sexually explicit conduct is not a constitutionally protected activity of public concern, and was properly grounds for termination. The Supreme Court agreed with Wardlaw, and reversed the Ninth Circuit majority in a per curiam decision without hearing argument.
On the other hand, there's one little hiccup, Card v. City of Everett from last year:
Wardlaw, writing for the court, held that a monument displaying the Ten Commandments on city land did not constitute city's establishment of religion in violation of First Amendment.
Too much God in this one too?

Another frontrunner is Diane Wood, who sits in the Seventh Circuit, Obama's home turf. Wood was raised as a temporary replacement for the Supreme Court after Ginberg announced she had pancreatic cancer. The Chicago Sun Times mentions a some of Wood's activism:

Wood clerked for Blackmun after he authored the 1973 Roe v. Wade case mandating that abortion be legal. She has cited that case in three opinions taking the pro-abortion-rights side of cases that came before the 7th Circuit:

• She wrote in dissent against bans on "partial-birth abortion" in Illinois and Wisconsin. The Supreme Court OK'd such bans in 2007.

• She ruled that Planned Parenthood could use the "RICO" anti-mob law to sue anti-abortion protesters -- a ruling ultimately reversed by the U.S. Supreme Court.

• She wrote in dissent that an Indiana law requiring in-person counseling before a woman could seek an abortion should be blocked.

If they're looking outside the judiciary, Stanford professor Kathleen Sullivan is another contender. Janet Napolitano is cosmopolitan enough, being of Italian Methodist extraction. Big enough cajones to hassle right wing extremists in her position as Secretary for Homeland Security too.

Here's Wikipedia's list of these and other contenders. Rule out the blokes. Apart from Ginsburg going, there's a woeful lack of women on the bench. The next two appointments are almost guaranteed to be women. From my position of ignorance, I'd say Diane Wood's the one. Kathleen Sullivan might get the next nomination when the time arises.