The Beltway’s predictably predictable talking heads have already settled on the “official” talking points for Justice David Souter’s retirement. The punditocracy’s verdict is this: the announcement is actually much ado about nothing. Sure, the right wing will throw a world-class temper tantrum regardless of the identity of Obama’s selection: and their toadies in the Republican caucus in the Senate will probably try to launch a filibuster, though barring some blockbuster disclosure they’ll lose in the end.
The only really interesting part of this, according to these high priests of the art of political pontification, is in the guessing game over which voting bloc will get the nod. A woman? A Hispanic? Or the granddaddy of all identity politics bonanzas, the almighty twofer — a Hispanic woman.
But from a substantive standpoint, the talking heads assure us, the whole affair will prove meaningless. Why? Because, Souter is part of the “liberal wing” of the Supreme Court, which means Obama’s appointment of a (presumably) liberal replacement will mean nothing.
Well, to let them in on a little secret, the sum of a Supreme Court justice adds up to more than a vote. Decision making on any multi-judge appellate court is a dynamic and complex process — part intellectual reasoning, part advocacy, part authorship and part personal politics. And not all justices are created equal. Some are trailblazing intellectual giants who rewrite the rules of jurisprudence and guide the work of generations of judges who follow. Others, on the other hand, are workmanlike laborers: capable jurists who do good enough work, but who are also soon forgotten.
Liberals have good reason to be grateful to Justice Souter, who proved a dependable center-left justice despite being appointed by the first George Bush (the same president, after all, who cursed us with the appointment of Clarence Thomas). Souter’s strong defense of sanity, in the face of the extreme right wing positions taken by other recent Republican appointees to the Court, saved the nation from much damage.
But as Jeffrey Rosen notes in The New York Times, Souter has been anything but a trailblazer.
Souter was never the intellectual leader of the “left wing” of the Supreme Court: that job has long been in the hands of John Paul Stevens, a man who recently turned 89. The need for a new generation of liberal leadership on the Court couldn’t be more self-evident. And the right selection could change the Court in fundamental ways, even if his or her vote does not vary from Justice Souter’s one iota.
That then is Barack Obama’s job: not just to put a liberal vote on the Supreme Court, but a liberal scholar, a liberal political genius and a liberal leader. Personally, I hope it’s a woman or a Hispanic: God knows women deserve more than one representative on the Supreme Court and it’s shameful no Hispanic has ever served.
But female, male, Hispanic, black Asian or lily white, what I’m hoping for more than any particular demographic is for the mind of a Benjamin Cardozo or a Learned Hand. So get to work, Mr. President. I’m not asking for much: just a legal genius.