Saturday, May 02, 2009

the supreme court

Barack Obama was an adjunct law professor at the University of Chicago and the editor-in-chief of the Harvard Law Review. His first Supreme Court appointment provides a rare opportunity to shake up an intellectually mediocre court and restore it to its previous grandeur. Unfortunately, there's little sign so far he'll do this.

The problem is Obama's inherent caution coupled with a strained reading of diversity, which has come to mean "otherwise conventional people who have some difference in physical appearance." Nearly all the picks suggested so far, from Elena Kagan to Sonia Sotamayor to Diana Wood and others, are in this category. None are bad picks, but none would do much to change the Court in an intellectual as opposed to a physical sense.

If Obama wants to give the Court a shot in the arm--or more likely, a kick in the pants--he has various options available. Any one of a number of legal scholars, from Cass Sunstein to Lawrence Lessig to Michael Dorf, would instantly raise the level of debate by several notches. If a woman or minority is desired, there are many available, from critical scholars like Derrick Bell or Catherine MacKinnon to conservatives like Mary Ann Glendon and a range of more conventional liberals (Stephen Carter, Randall Kennedy, and women too numerous to mention) in between. Elizabeth Warren, who is currently running the TARP fund, is among the nation's leading commercial law experts and would bring a sensitivity to class and social issues rarely seen on the present day Court. Nor is there any shortage of people with practical experience: what is Al Gore doing now, or for that matter, Bill Clinton?

If Obama really wants fireworks--and doesn't mind an older candidate--I have the perfect idea. He's 78 years old, attended Yale Law School, and has shown an intense interest in previous nominees. Appointing him to the Court is moreover the only practical way to eliminate him from the selection process. Does anyone know what Arlen Specter is doing these days?


Post a Comment

<< Home