Justice Souter has expressed his disdain for Washington quite clearly and has apparently been telling friends since before the election that if President Obama won, he would be leaving the court. He was appointed by President George Bush, Sr. in 1990. Obviously, he was expected to be a conservative, but surprised many by becoming one of the most reliable members of the liberal side of the court. The Times article points out that replacing him with a liberal will not make any big impression on the overall ideology of the court. I have to disagree with that idea. Right now, there are five conservatives and four liberals on the court. Justice Kennedy, a moderate conservative, tends to be the swing vote in most circumstances. If Souter, who the Martin-Quinn Supreme Court Ideology Project scores as having about the same level of liberal leaning as Breyer and Ginsberg (which is less than the most extreme liberal on the Court: Stevens), is replaced by someone who does not have near that same level of liberal leaning, there can be many different outcomes. I am not saying to appoint an extreme liberal because I do not think that would have any type of positive effect on the court, in fact, I think it would make it more divisive. However, if President Obama appoints a Justice that is more moderate than Breyer and Ginsberg, the new Justice may be apt to side with the conservatives on more issues than the others would. This would definitely give the conservatives on the Court a clear advantage. Ideology is something that President Obama should carefully consider in the appointment of the new Justice, especaially when there are so many more extreme conservatives on the Court than there are extreme liberals.
Additionally, Mary L. Dudziak of the blog, Balkinization, wrote a post entitled: "What should Obama look for in a Supreme Court Justice?" defining what she thinks the most important issues the President should take into consideration are. Beyond mere ideology, I agree with Ms. Dudziak that the life experience of the appointee are invaluable in helping them to form their legal opinions. Justice Ginsberg has been an outspoken advocate for the rights of women, not only because she is a woman, but because she experienced the discrimination women all over America have faced (and some are still facing). Her ideas of possible experience that would bring the necessary kind of diversity to the court are stated by her as follows:
"The next justice must understand that legal principles are not simply abstractions but have immediate and long-term consequences in the lives of individuals and communities. Perhaps Obama's nominee will have represented clients in deportation hearings, served low-income families in a legal aid office, or advised gay and lesbian members of the armed services. At this moment in American history, a nominee who has represented detainees at Guantanamo could bring important insights into the court's deliberations and further signal a change in the nation's posture toward human rights."
She also states that the appointee should be someone who can bring the opposite ends of the Court together, a mediator of sorts. I could not agree with Ms. Dudziak more. I want a Justice who has seen the real problems of the country and actually experienced them, and I can not think of another President who I would legitimately expect to use that as criteria. However, I have faith that President Obama will pick someone who will bring real world experience to the bench as well build some bridges between the conservatives and liberals of the Court.
