Court announcement today?
By Jennifer J. Foster
While Washington awaits with baited breath the announcement of President Obama’s pick to replace departing Justice David Souter, I thought I’d take this opportunity to point out a couple of interesting things I’ve read as pundits and journalists have picked apart the potential nominees—and the man one will replace.
The New York Times has an interesting piece that maintains that the favorites of the political left haven’t made President Obama’s Supreme Court-Idol list.
SIDEBAR: The foremost example: Pamela S. Karlan, is “a champion of gay rights, criminal defendants’ rights and voting rights,“ according to the Times ... oh yeah, and she is, in her own words, “sort of snarky.”
To wit:
But Ms. Karlan does not expect President Obama to appoint her to succeed Justice David H. Souter, who is retiring. “Would I like to be on the Supreme Court?” she asked in graduation remarks a couple of weeks ago at Stanford Law School, where she teaches. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”
Yeah. I’m not sure that attitude would go over too well with ol’ Jeff Sessions and his partymates on the Senate Committee on the Judiciary. END SIDEBAR
Seventh Circuit Court of Appeals judge Diane Wood seems to lead the pack coming into Tuesday morning. A former colleague of Obama’s at the University of Chicago law school, she is purported to have both the intellectual chops Obama is said to be seeking in his choice and the personal relationship with the president he has shown himself to value in decisions like this.
But I told you before that my money’s with federal appeals court judge Sonia Sotomayor—at least as far as those names flying above the radar.
Court observers, though, are dissecting a statement the president made in an interview with C-SPAN last week regarding what he’s looking for in his pick:
“What I want is not just ivory tower learning. I want somebody who has the intellectual firepower but also a little bit of a common touch and a practical sense of how the world works,“ the president said.
Common sense? A practical sense of how the world works? Isn’t that kind of a low bar for a nominee to the Supreme Court of the United States?
Cue Lee Corso: Not so fast, my friend!
You might think that’s a low bar, if you hadn’t caught this profile CNN did on Souter when he announced his retirement. According to that piece, Souter is a lifelong bachelor; eats his a daily lunch—an apple and yogurt in a plastic grocery bag, which he brings from home—alone in his chambers; and pursues his hobbies of reading, jogging and hiking almost exclusively alone.
One Court observer says of Souter, “People didn’t know him. He didn’t go to parties, he didn’t do speaking events. David Souter was really an isolated individual very much by choice.“
In other words, Supreme Court Justice David Souter is pretty much ... a hermit.
Don’t get me wrong: I’m not faulting Souter for his solitary lifestyle. But when someone is charged with interpreting the laws that the rest of us have to live under, isn’t it in the country’s best interest to have someone in that post who has more in common with them than not?
And if you don’t think that matters, if you think that real-life experience is a given, consider this from the CNN story:
One puzzle for Souter was technology. He famously told Congress he would allow cameras in his courtroom only “over my dead body.“
He shunned cell phones and pagers, and wrote drafts of his opinions in longhand, while a court-issued computer gathered dust in his chambers. Friends laugh recalling that for years he owned only an old black and white TV that was never plugged in.
So it surprised many when in 2005 Souter wrote a landmark cyber-age ruling in the so-called “Grokster” case. The court made software companies liable for misusing their file-sharing services and allowing copyrighted material to be easily and illegally downloaded.
“I am willing to bet Justice Souter had never seen a file-sharing application,“ said Tushnet, who is also an expert on cyber-age legal issues. “I would stake my life he had never used one, and would never use one. And yet his opinion reflected an understanding of how it works on the technical level, and how it affects a legal analysis of whether or not the supplier of the program should be held liable for what the people who use it do with it.“
Can you imagine someone interpreting telecommunications laws who has no use for and almost no experience with telecommunications implements?
Yikes!
Although Souter gets high marks from Tushnet for his understanding of the legal issues surrounding file-sharing applications, isn’t it better, given the choice, to have someone adjudicating those issues who has a fuller, deeper, more personal understanding of that technology—or, failing that, at least some passing experience with the technology?
Come on, President Obama! At least pick someone with a cell phone!
OK. I’m done venting my horror.
Meanwhile, Republicans aren’t shying away from signaling to the president that they aren’t going to hesitate to filibuster his nominee if they find the nominee out of the ideological mainstream—
SIDEBAR: I’m not sure that Republicans on the national level could easily agree on what constitutes an ideological framework outside the mainstream. But I digress. END SIDEBAR
—and not only because they think it might be their one and only chance for a long, long while to use that tool.
And finally, in an ironic twist, former-Republican-turned-“independent Democrat” Arlen Specter may end up giving the GOP a hand in this effort, after all.
Committee rules require the consent of at least one Republican to end debate and move a nominee to the full Senate for a vote. Thanks to Specter’s party switch, his position as ranking member now rests with ... U.S. Sen. Jeff Sessions, R-The Yellowhammer State.
I love irony. I absolutely love it.
So, the world waits ... Wood, Sotomayor, Kagan or Napolitano? Or someone else entirely? What do you think? Who will it be?
And when will we know?
