In 2005, the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O'Connor marked the end of an 11-year-long drought of Supreme Court vacancies. Last week, Justice Ruth Bader Ginsburg was hospitalized for pancreatic cancer - a reminder that several more Supreme Court justices may be approaching the end of the their careers. A new vacancy - or vacancies - on the court will provide President Obama with a critical opportunity. After acronyms like TARP and ARRA are long forgotten; after Sasha and Malia have graduated from college; yes, even after it's safe to eat peanut butter again, Obama's Supreme Court appointee will still be deciding fundamental controversies on weighty issues like equal protection, free speech and the limits of executive power.
How should Obama decide who to pick? Some say Obama needs his own John Roberts - a jurist with impeccable credentials, universal respect and that "regular-guy" charm. They argue that Obama has forcefully rejected the partisan vitriol that so often paralyzes Washington, and he knows few issues incite such hostility as Supreme Court nominations. By consulting closely with the likes of Sen. Arlen Specter, R-Pa., and Sen. Orrin Hatch, R-Utah, Obama can add credibility to the court, appease a public that has little patience for bruising nomination battles and strengthen the moderate, pragmatic brand O'Connor exemplified.
Others, however, reject such an approach and call for a liberal version of Antonin Scalia, a justice whose fiery opinions are written for the textbooks. A liberal Scalia would provide the intellectual anchor for a progressive philosophy of law and redefine "moderate" to its historical place.
A recent study by the University of Chicago Law School ranked the 43 justices who have served on the court since 1937 on an ideological scale. It found that four of the five most conservative justices over that span sit on the court today; Ginsburg is the only current justice among the top 10 most liberal (she's ninth). Sandra Day O'Connor, the quintessential swing vote on the modern court, was the supposed embodiment of centrism - and she clocks in as the seventh most conservative justice of the past 70 years. Obama has a special opportunity to add an unapologetically liberal voice to a court that has for too long lacked one. He should, according to this view, add a justice that makes Breyer, Souter and Stevens look like what they really are - moderates.
Obama shouldn't follow either of these strategies. Or rather, he should follow both. Obama is heralded as a master of collapsing dichotomies and he should do that here, bridging the complementary strengths of the two approaches. Obama should nominate someone with the pen of a Scalia and the smile of a Roberts.
After his first month in the White House, Obama has been stung by the GOP's unrelenting partisanship. Despite an unprecedented outreach on his stimulus bill, Obama was repaid with the same old attacks. For his court nominations, Obama should recognize he doesn't need the approval of a discredited regional party. Instead, he should seek the public's approval by nominating someone with a magnanimous temperament whose qualifications are beyond dispute.
But he should also stick to his campaign pledge to nominate "somebody who's got the heart [and] the empathy to ... understand what it's like to be poor, or African American, or gay, or disabled, or old." This sounds like the liberal champion the court needs.
No doubt there are many on the federal bench or in academia today who can provide a first-rate legal mind that recognizes the true demands of justice, and certainly Obama can find a woman or Hispanic or Asian to add much-needed diversity to the Court. But of all the demographic indicators, one is paramount: May the justice be young, healthy and eat her vegetables.
Jacob Shelly is a senior in the School of Public Affairs and a liberal columnist for The Eagle. You can reach him at edpage@theeagleonline.com.
