And Justice Souter’s Replacement Is?

Will Obama appoint a moderate to the Supreme Court  following in Clinton’s footsteps? Or does Obama’s discussion of empathy suggest that he will choose a real fire-in-the-belly liberal, a staunch supporter of judicial activism? Either way, the conservative crew will be grouchy (as could be expected). A memo making its rounds on the right rallies the opposing troops by targeting three candidates. Elena Kagan, for one, is apparently unacceptable because she is in favor of “enhanced presidential control and centralization of power in the White House,” … now the conservatives bemoan executive power.  Judge Sotomayor  is deemed unworthy because she takes identity too seriously. “She believes it is appropriate for a judge to consider their ‘experiences as women and people of color’ in their decision making, which she believes should ‘affect our decisions.’”

Souter’s departure is  an interesting moment to discuss  how Obama’s experiences as a constitutional lawyer will play out in his decisions as President. Souter’s time on the bench demonstrated the importance of understanding the law’s effects on real people’s lives and a refusal to give in to the privileges of Washington. Obama’s own experience as a law professor echoed the qualities that made Souter a really remarkable judge. Both are pragmatic and caring of the way the law affects those who lack power to change their circumstances. Both reject the highbrow elitism that distances the law from the people. I can’t see Obama eating an apple with yogurt for lunch every day (how boring!) and he certainly is no luddite (as his awesomeness with blogs demonstrates… he even tweets these days !), but both share a  modesty and simplicity  in lifestyle that is awfully sweet.

When Obama says he “will seek someone who understands that justice isn’t about some abstract legal theory,” he brings to mind his own experience  teaching and lawyer-ing in Chicago. While teaching at University of Chicago, Obama was a down to earth professor, deeply caring of the way his students thought about the law’s effects on real people and imaginative in the way he brought progressive politics into the classroom. How Obama’s experience as a constitutional lawyer will affect his choice of justice is still to be determined, but his emphasis on the  value of empathy is perhaps a legacy of that time.

Does the word empathy scream judicial activism? Wouldn’t an empathetic  justice  work the law to achieve the greatest social good for those she empathizes with… so isn’t the natural implication of empathetic judges, a court that serves as a moral compass… are we still with Obama, the minimalist? Obama’s opportunity to shape the Supreme Court according to his own legal philosophy will give us a sense of what that philosophy is and how it will influence the strategic importance of bi-partisanship. The visionary minimalist will reveal himself as either more visionary or more minimalist … or he could just appoint Cass Sunstein, who came up with the phrase. Regardless, it should be an interesting decision.

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom,” Obama said. “The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criterion by which I’m going to be selecting my judges.” Word.

Will Obama pick a woman or a member of an underrepresented ethnic group? Will people approve of his choice? While the democrats are not expecting difficulty with senate confirmation, newly appointed Democrat Arlen Specter could make things difficult. Guesses on the pick?