Filling the Supreme Court Vacancy

The recent announcement of Supreme Court Justice David Souter's intention to retire has presented Barack Obama with his first opportunity to make an impression on the courts and the interpretation of the law that will last beyond the life of his presidency.

Realistically, of course, the number of vacancies that Obama may be called upon to fill, even if his presidency is only one four–year term, could be unlimited. William Howard Taft nominated six Supreme Court justices in his single term, and the ages of the current justices imply the possibility of retirement or death for more than one before the next presidential election.

More than half of the justices are 70 or older. John Paul Stevens, who was appointed by President Ford, is 89 years old. Ruth Bader Ginsburg, who was appointed by President Clinton, is 76 and has had bouts with cancer in the last decade. Antonin Scalia, who is 73, and Anthony Kennedy, who is 72, were appointed by President Reagan. And Stephen Breyer, who is 70, was appointed by President Clinton.

Thus, while he is compiling his list of prospects from which will come his choice to replace Souter, Obama would be wise to keep an eye to the future.

Last night, while I was watching CNN, political analyst Bill Schneider was discussing survey results that indicated that less than half of respondents felt that it was important for the next member of the Supreme Court to be female, Hispanic or black. I think that is good because it indicates a de–emphasis on the symbolic and superficial aspects of the appointment.

Would it be a good thing to have another woman or another black — or the first Hispanic — on the Court? Certainly. But, as George W. Bush learned to his chagrin, gender (or ethnicity) cannot be the sole benchmark for choosing a nominee.

That was reaffirmed by the results of the survey. As Schneider told the viewing audience, nearly 90% of the respondents felt it was important for the next justice to have judicial experience. That indicates that the public places a premium on practical considerations.

The Constitution established no qualifications for serving on the Supreme Court, which gave the president the authority to nominate anyone. But the nominee must be confirmed by the Senate, which means a majority of senators must find the nominee suitable for the post.

Administration officials have told CNN.com that Obama may name his nominee late this month or early next month, before he leaves for Egypt. If that is true, chances are that he has already whittled his list down to a handful of names.

Considering the low approval ratings that Congress has received from the public in recent years, the Senate would be wise to apply the confirmation yardstick that is regarded as most important by most Americans. If Obama happens to select a woman or a black or an Hispanic, that's fine. But if that person doesn't have judicial experience, that nominee may be destined for the Harriet Miers Expressway.

David Strauss, one of Obama's law school colleagues, told James Warren of The Atlantic that he doesn't see Obama as having a "Supreme Court–centered agenda. He's not trying to move the Court in a dramatic new direction or to get the Court to make important changes in society."

There are still those, however, who hope to see a nominee who will promote a progressive agenda by upholding Roe v. Wade and supporting gay rights and affirmative action while opposing efforts to implement school prayer.

And, clearly, there is a growing movement favoring the reform of marijuana laws.

There is also a movement against judges legislating from the bench, but Obama could send a powerful message by appointing someone whose judicial decisions support progressive positions.

I was reading an intriguing article today written by Matt Welch for Reason.com. It contains a cautionary tale for Obama as he makes this important decision.

"When the generation of Americans under the age of 30 gets around to realizing that this handsome young president might not be nearly as cool as they'd hoped," he writes, "it won't be hard to affix a date on when the milk began to sour. It was March 26, 2009, when Barack Obama conducted a live town hall press conference featuring questions submitted online."

During the online town hall, Obama referred to the fact that 3½ million people submitted questions to be asked, and one of the most popular questions had to do with legalizing marijuana.

The question was posed as a way of improving the economy and creating jobs, both of which are high priorities for the Obama administration. But, in spite of ample evidence that billions in tax revenue from marijuana sales could be generated and millions of jobs could be created, Obama declined to address the question.

Of course, a discussion about legalization also could have put more attention on the other benefits that could be derived, such as re–focusing the billions that currently are being spent on the "war on drugs" — which in effect criminalizes millions of hard–working and otherwise law–abiding citizens — in more productive ways — for example, using that money to pursue violent criminals.

Obama's response (or lack of one) didn't go over well with many of the younger, more socially enlightened voters who turned out to vote for him in November. He didn't seem to realize that many of those who voted for him did not do so simply because (a) he wasn't a Republican and (b) his last name wasn't Bush or Clinton. They did so because they sought a more enlightened leader than they had had in the previous eight years.

"There's little doubt about the broad mores of Generation Obama," writes Welch, "pro–choice, pro–gay, and pro–legalization. Obama's got the first one covered, but his youngest supporters are finding out quickly that on the latter two the president is not offering substantive 'change' from the last few administrations."

Nominating a judge who has been lenient about gay rights and medical marijuana and favors a more progressive federal stance on marijuana use in general would go a long way toward reassuring increasingly disenchanted Obama supporters.