If they made posters of Supreme Court Justices, I’d put John Paul Stevens on my bedroom wall. The man is a progressive hero — first and foremost, for his longevity. In 2006, the liberal radio station Air America made a parody of “Hang On Sloopy” called “Hang On Stevens” — with lyrics like, “Stevens, I don’t care if you lose your mind, just wait until Bush leaves before you resign.” Past Sandra Day O’Connor and William Rehnquist and David Souter, Stevens hung on. And he probably could have kept going. He plays tennis twice a week, at 90 years old!

Still, his retirement is well-deserved. And thankfully, we don’t need Stevens to hang on anymore. We can only hope that President Obama finds someone as thoughtful and, yes, empathetic as Stevens to fill his shoes.

Appointed by Republican Gerald Ford in 1975, Stevens was not always an icon of the left. He has claimed that he didn’t change — that the Court changed around him. But it’s hard to take that seriously. Over the course of 34 years, Stevens has changed his mind on affirmative action, obscenity, and the death penalty, always moving in a more liberal direction.

Even his last major opinion, his dissent in the Citizens United campaign finance case, reflected a long-ago flip-flop. In January, Stevens caustically wrote, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” In 1978, though, a Stevens-backed majority ruled that speech doesn’t lose the Constitution’s protection “simply because its source is a corporation” — the same sort of claim made by the Citizens United majority. It’s a shame Stevens wasn’t always as liberal as we’ll remember him, but he should feel no shame in admitting that he learned on the job, that he came around.

On some issues, of course, Stevens has been consistent. He has always protected a woman’s right to choose, upheld the separation of church and state, and defended the federal government’s power to regulate the economy. And in the last ten years, he has made his name, and shaped his legacy, as the intellectual leader and chief strategist of the Court’s increasingly beleaguered liberal wing.

What we might call Stevens’s heroic era began in 2000 with Bush v. Gore, an affront to democracy that Stevens unabashedly identified as such. In the early part of the Bush era, Stevens helped the liberals eke out major victories, or at least stave off major defeats, by assigning opinions to centrist justices like O’Connor and Anthony Kennedy and then rallying the liberal troops. This savviness gave us cases like Lawrence v. Texas, the major gay-rights victory; Grutter v. Bollinger, the last vindication of affirmative action; and Roper v. Simmons, which forbade the death penalty for crimes committed by minors.

This period will also be remembered for Stevens’s brave defense of the rule of law in a string of decisions rejecting Bush counter-terrorism policies. In 2004 he led a six-justice majority in holding that federal courts had jurisdiction over the prisoners at Guantánamo Bay, Cuba. The Bush Administration would no longer be able simply to ignore detainees’ claims of wrongful detention. In 2006, Stevens wrote the opinion overturning Bush’s military commissions because they had not been authorized by Congress and violated the Geneva Conventions. Finally, in 2008, this line of cases culminated in Boumediene v. Bush, which rejected even congressionally authorized military commissions as offensive to the right of habeas corpus. After September 11, few would have guessed that a majority of the Supreme Court would be courageous enough to stand up for the procedural rights of terror suspects. Stevens deserves a great deal of credit for that outcome.

Of course Stevens wrote a few decisions that shouldn’t sit well with liberals. I don’t want to suggest that he was the ideal Supreme Court Justice, as if such a thing exists. In 1989, Stevens refused to protect flag-burning under the First Amendment, hearkening back to “the soldiers who scaled the bluff at Omaha Beach” under the Stars and Stripes. (Stevens himself served in the Pacific Theater.) And in 2008 he upheld a photo-ID requirement that, like most anti-voter fraud laws, disproportionately hindered the poor and the elderly from exercising their right to vote.

But neither Supreme Court justices nor the nominees chosen to replace them should be held to a standard of ideological purity. With regards to nominees, we couldn’t do so if we tried. No prominent lawyer, judge, or politician is going to have a track record on every constitutional question that might arise in the next thirty years. And if they did, they’d never be confirmed. Our broken political process demands that nominees say nothing interesting or substantive; platitudes and evasions are the name of the game.

The next several weeks will, of course, be given over to fevered and uninformed speculation about whom Obama might nominate to replace Stevens. I’m not going to pick a favorite. Harvard parochialism doesn’t decide the issue for me — how could I choose between Elena Kagan, Elizabeth Warren, Cass Sunstein, and Martha Minow? If I wanted a smart, liberal, female law professor from Stanford, I’d have to flip a coin between Pam Karlan and Kathleen Sullivan. Better to just wait and let Obama pick for me.

Still, I can say this much: Obama is probably never going to have such a good chance to appoint a bona fide liberal to the Court. There’s no doubt the Democrats are going to lose at least a handful of senators in the fall, making any post-midterm nominations much dicier. And, as the New York Times reported last week, Republicans may be wary of being portrayed (accurately) as “knee-jerk obstructionists.” My bet is still that they’ll filibuster anyone Obama nominates; they cannot afford to deflate their base’s balloon before the midterms.

So the question becomes whether the nominee can be sold to the public and to the handful of reasonable GOP senators. Ultimately, “wise Latina” or not, Sonia Sotomayor was broadly popular from the get-go, and there just wasn’t enough there for honest Republicans to oppose. Let the Republicans complain; if Obama appoints the right person, things will fall into place. We need someone like Stevens, someone who we’ll be cheering to “hang on” thirty years from now.

Photo credit: Wikipedia

case is a blow to democracy

The outcome of Citizens United vs. Federal Election Commission has rocked the political world by reframing the controversy over corporate influence in political campaigns. In the 5-4 ruling, a majority of the Supreme Court struck down provisions of the McCain–Feingold Act that forbade corporations and unions from directly supporting or opposing candidates for office. The decision leaves candidates more susceptible to corruption by tilting the balance of power in our democracy towards wealthy corporations and interest groups.

DIVERGENT INTERPRETATIONS

The majority opinion took a novel but somewhat expected approach to the monumental case, which saw its beginnings in the recent presidential campaign. In 2008, the Federal Election Commission banned the interest group Citizens United from airing its unflattering attack-documentary against Hillary Clinton on cable television, saying it violated campaign finance restrictions under the McCain–Feingold Act. Citizens United appealed the decision to the Supreme Court, which heard two sets of oral arguments in the case. By asserting the inalienability of free speech while also extending it in an unprecedented way to corporations and other associations, the Court employed both a strict enforcement of the First Amendment and a loose broadening of its application. Justice Anthony Kennedy, speaking for the majority, wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” In effect, the court extended First Amendment protections to interest groups, completely overturning the restrictions permitted by the ruling in Austin vs. Michigan Chamber of Commerce in 1990. As John Samples of the Cato Institute explained to the HPR, “The Constitution doesn’t mention speakers,” only speech, and therefore distinctions between corporations and other speakers are impermissible. The McCain–Feingold law, according to Samples, restrained associations’ right to express their political views.

Dissenting justices, led by John Paul Stevens, emphasized their wariness about corporations’ influence on government. Stevens lambasted the majority’s “rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding,” and worried that the decision would “undermine the integrity of elected institutions across the Nation.” Drawing on over a century’s worth of statutory and constitutional law restricting the sort of influence that the majority has now allowed, the dissenters made a case for favoring the intent or principle behind the First Amendment over a literal interpretation. Harvard Law School professor Mark Tushnet told the HPR that “the dissenters argue that constitutional law should leave more room for policy judgments by Congress than the majority’s doctrinal framing allows.”

DEMOCRACY DERAILED

Regardless of the constitutional merits, it seems unquestionable that the decision will have a negative impact on politicians’ susceptibility to corruption, or at least what most of us would call corruption. Corporations, unions, and other interest groups, using their treasuries as threats, will have substantial leverage over representatives. Nevertheless, supporters of the decision, such as Samples, argue that “it is easy to exaggerate the practical effects of this decision” and that “[corporate] speech is not the same thing as results or power.” Harvard Kennedy School professor Alexander Keyssar, drawing on recent history, countered that “anyone who’s witnessed elections in the past ten years will see the influence of money in elections. Big Pharma doesn’t donate to campaigns out of altruism.” This influence will expand at the expense of the millions of individuals lacking the means to conglomerate their funds to affect the electoral process. Brookings Institute senior fellow Thomas Mann warned the HPR that “the potential dangers to American democracy are great.”

THE FUTURE FOR REFORM

Cautiously working within the confines of the Court’s recent ruling, leaders on Capitol Hill are scrambling to mitigate the decision’s effects. While a handful of senators, including John Kerry (D-MA), have gone so far as to endorse a constitutional amendment to restrict corporate influence, Keyssar said that its success is “unlikely” and that “it’d take a crisis” for the movement to gain any traction. A more feasible path to some limited reform may be to enact legislation forbidding foreign-owned corporations from influencing American elections, a phenomenon about which policymakers of both parties have expressed concern, but which is of uncertain importance. Others are calling for requirements that corporate political expenditures be approved by shareholders. Indeed, Tushnet emphasized that “the real action should be to shift attention from campaign financing to corporation law, and figure out some ways to ensure that shareholders really do approve of corporate expenditures on political campaigns.” Still, the future of reform remains unclear. While Senator Charles Schumer (D-NY) has promised legislation, Senator John McCain (R-AZ), a long-time proponent of reform, has indicated that he “[doesn’t] think there’s much that can be done.”

As Keyssar noted, an implicit deal was once struck between government and corporations: the latter would be protected from antitrust suits in return for a promise that “the political arena would not reflect the imbalance of power represented in the economic arena.” The Supreme Court has upset this equilibrium, and it may also have taken away the tools necessary to restore it.

John He ’13 is a Staff Writer.

Photo Credit: Robert Palmer (Flickr), AMagill (Flickr)

Every election cycle, we are told that the future of the Supreme Court, and particularly the future of abortion jurisprudence, is at stake. This election-centric view infects the mainstream media, which routinely publish October headlines like “This time, Roe v. Wade really could hang in the balance,” as the Los Angeles Times declared last month. But such speculations lose sight of the inherent unpredictability of any single election’s effect on the Court. Moreover, the Roberts Court has shown little inclination, and has little motivation, to dramatically alter the abortion-law landscape.

Got Consent?
The trouble with predicting that a particular presidential election will make or break the right to abortion begins with the fact that history has shown otherwise. Presidents do not get free rein in making appointments to the Court. As Richard Fallon of Harvard Law School told the HPR, “the dynamics [between the Senate and the presidency] are very complicated.” The textbook case study is Ronald Reagan’s 1987 nomination of Robert Bork, which the Democrat-controlled Senate blocked because of Bork’s obviously anti-Roe sentiments. Five years later, the Senate’s resistance was rewarded when Anthony Kennedy, who eventually got the spot denied to Bork, voted with the 5-4 majority in Planned Parenthood v. Casey, which reaffirmed Roe’s “central holding” while also permitting a number of state restrictions. Ed Whelan, president of the Ethics and Public Policy Center, told the HPR that “it’s safe to assume” the Court would have overturned Roe if the Senate had confirmed Bork. The failed Bork nomination should warn against overlooking the Senate and overemphasizing on the influence of a single presidential election on the federal judiciary.

Even after they chart the treacherous waters of the Capitol, the justices are far from predictable, especially if one’s only clue is the president who nominated them. The Court’s oldest liberal, 88-year-old John Paul Stevens, was nominated by Republican Gerald Ford. Kennedy, a moderate conservative who has drawn the right’s ire for his vote in Casey among other issues was nominated by Reagan. George H.W. Bush, who would later give us Clarence Thomas, nominated David Souter in 1990 with a promise from his Chief of Staff, John Sununu, that Souter was a “home run” for the conservative base. The base was more than a little dismayed when Souter voted only two years later with the Casey majority. Of four Reagan/Bush appointees, only two voted to overturn Roe in 1992, further suggesting that the presidency’s effect on the Court, and particularly on its abortion rulings, is often overstated.

The Roberts Court and Roe
For these reasons, perhaps the best indicator of the direction a Court will go on an issue is where it has been already. In 2007’s Gonzales v. Carhart, Kennedy sided with the conservative bloc in upholding a ban on partial-birth abortions. But Kennedy’s majority opinion accepted the principles of Roe and Casey as “controlling,” a concession that may not have appeased pro-choice advocates, but which nevertheless indicates the durability of the Casey settlement. Gonzales, then, was a status quo decision: states can limit abortion access in the interest of protecting life, but Roe is still on the books as the controlling precedent. Liberals like Jessica Arons, Director of the Women’s Health and Rights Program at the Center for American Progress, maintain that the Court has been “undermining” Roe with decisions like Gonzales and Casey. But Roe’s reversal, despite the perennial pre-election warnings, likely will not soon materialize.

The two Bush-appointed justices, Chief Justice John Roberts and Justice Samuel Alito, signed on to Kennedy’s opinion in Gonzales but not to Thomas’s separate concurrence, which argued for overturning Roe explicitly. This makes the guessing game more difficult. Partisans cannot even agree on the meaning of Roberts’s and Alito’s comments to the Senate regarding Roe: Arons told the HPR that Roberts “certainly said” he would respect Roe’s precedent, but Whelan denies that he made any pro-Roe gestures whatsoever. Jeffrey Rosen of George Washington University reported to the HPR that Justice Stevens believes his newest colleagues “are prepared” to overturn Roe. Unfortunately, Gonzales is not very instructive in deciding whom to believe; it only indicates that the Court is reluctant to strike down a popular and ultimately minor restriction on the abortion right. If the Court were directly challenged on Roe’s central holding, its considerations would be far more complicated.

Casey’s Enduring Precedent
In such a case, there are reasons to believe that the Court would be reluctant to revisit the Casey standard. For one, the principle of stare decisis (“let the decision stand”) demands that the justices consider whether Americans have “come to rely on the law being a certain way,” according to Arons. If the question only concerned the justices’ personal feelings about abortion, it is probably safe to assume that Kennedy, a devout Catholic, would never have joined the Casey majority. There is little doubt that Alito and Roberts are personally pro-life, but this does not make them sure votes for overturning a precedent, and a constitutional right, that gets older every day. Moreover, the Court as an institution is generally hesitant about creating or abridging constitutional rights by mere 5-4 votes (Roe was decided 7-2). Fallon told the HPR that a Court composed of “seven justices who thought Roe was really a mistake” would probably throw out the precedent, but “it’s less likely if you had only five.”

In all likelihood, then, the Court will continue to narrowly construe the abortion right and permit most state restrictions without overturning Roe. This approach fits the general tenor of the Roberts Court, which has decided even its most controversial cases as narrowly as possible. For example, last term’s headline-making decision, the D.C. v. Heller gun-control case, announced a constitutional right to gun ownership while leaving “unsettled,” in Fallon’s words, the circumstances under which it may be infringed. The Court has also taken several business-related cases, which rarely make headlines, often scramble the Court’s ideological divisions, and involve statutory rather than constitutional interpretation. In the current term, it appears to be focused on small-bore cases almost “by design,” according to Rosen. And Arons says that Chief Justice Roberts seems more interested in “consensus-based opinions” than judicial salvos in the culture wars. To alter the Casey compromise one way or another would invite controversy that ultimately might harm the prestige and power of his Court. In this climate, and given the history of confirmations past, to predict how a single election might lead to any particular decision is to overlook the interplay among other important factors.

We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true…But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.” So concluded Justice John Paul Stevens in the 2006 case Hamdan v. Rumsfeld. Legal commentators hailed the decision proscribing trial by military commissions at Guantanamo Bay, yet two years before in the E. Barrett Prettyman Courthouse, Judge James Robertson had reached a similar verdict. “It is now clear, by virtue of the Supreme Court’s decision in Hamdi [sic], that…unless and until the Military Commission’s rule…is amended, Hamdan’s trial before the Military Commission would be unlawful.” The similarity was more than coincidental. For the past seven years, Robertson’s tribunal, the D.C. District Court and its appellate counterpart, the U.S. Court of Appeals for the D.C. Circuit, have served as legal battlefronts in the war on terror. However, the courts’ turn in the legal spotlight has proved controversial and uncertain, and in the end the tenuous relationship between the district and appellate court forced Supreme intervention from One First Street. D.C.’s unitary influence over executive oversight may soon end, but its experience suggests that elevating one circuit to form wide doctrine can ultimately prove more inefficient than expedient.

The Second Highest Court in the Land

Though of the smallest geographic jurisdiction, the District of Columbia courts wield disproportionate power. They are the primary oversight for federal agencies, the most proximate to the federal government, and the junior varsity Supreme Court bench. Yet terror cases arrived relatively late to the capital. While a few were filed as early as 2002, it was not until 2004 that D.C. emerged as primus inter partes. In Rumsfeld v. Padilla, the Supreme Court imposed certain restrictions as to where detained prisoners could bring suit. As Harvard Law School professor Gerald Neuman explained to the HPR, “Padilla said habeas corpus cases should have limited jurisdiction. For Guantanamo cases, you have the choice to sue in the Fourth Circuit [where the Pentagon sits] or in D.C., but the Fourth Circuit has been conservative, so a combination of lawyers, courts, and congressional action explains the prominence of the D.C. Circuit.” As Neuman elaborated, all Guantanamo detainee cases since Padilla have been transferred and decided before D.C. District Court judges, then appealed to the Court of Appeals and from there to the Supreme Court.

Such uniform procedure has not yielded smooth outcomes; instead, the courts have issued significantly varied precedent. Early years of the war on terror saw many governmental victories at the district and circuit level. In 2004’s Hamdan v. Rumsfeld however, district court Judge Robertson found military commissions without prisoner of war hearings unconstitutional. The D.C. Circuit Court reversed Robertson, only to be itself reversed and remanded by the Supreme Court in 2006. Hamdan’s wake split the district court; Judge Richard Leon ruled that detainees could not appeal for writs of habeas corpus, while Judge Hens Green affirmed detainees’ rights to file suit. The appellate court agreed with Leon, but the Supreme Court’s Boumediene v. Bush decision in 2008 ultimately overruled the circuit.

Confusion all around

Experts emphasize that the pattern of split decision and reversal springs from several causes. First is the opacity of past jurisprudence. Charles Swift, lawyer for the plaintiff in Hamdan v. Rumsfeld, told the HPR that while differences existed between Leon and Green’s 2006 rulings, “The opinions are not night and day apart. The problem is the war on terror is unprecedented.” Most cases prior to Boumediene argued around the World War II case of Johnson v. Eisentrager, and according to Professor Neuman, the circuit court’s dogmatic approach exacerbated the uncertainty. “The problem is, the Supreme Court caselaw is unsettled, and the D.C. Circuit took a very rigid view of what those rulings meant.” Such opinions squeezed the district court judges’ power to draw acceptable opinions, and this muddled precedent often led to the D.C. and Supreme Courts answering different questions. Although Boumediene encompassed both Leon and Green’s cases, Neuman said, the “case appears to go out of its way to be broader and not Guantanamo specific. From that perspective, Judge Leon and Judge Green’s differences don’t matter.” Though the Supreme Court was able to resolve this divisive issue through its authority, the wide disparity between it and the appellate courts vastly exceeded ordinary parameters.

These divergent viewpoints may draw from a common source. Even though the cases in the circuit court are supposed to be drawn by random lot, all have ended up in front of Judge Randolph, the reputedly conservative judge who wrote the subsequently overturned majorities in Boumediene and Hamdan. The district court has then seen its own version of specialization; it has both “coordinated order enforcement…and sent the vast majority of the cases to Judge Hogan for coordination,” Susan Manning, partner at Bingham McCutchen told the HPR. Nonetheless, several judges on the district court insist on deciding the cases on their docket themselves.

Player no more

The implications of D.C.’s Guantanamo cases appear uncertain. At the time this article went to press, Judge Leon had just found five detentions unjustified. However much of the jurisprudence may soon prove moot. As Swift observed, “If President-elect Obama follows through on his promises to close Guantanamo, the question is, does the D.C. Circuit continue to play? If he moves detainees elsewhere, the D.C. Circuit will no longer be a player.” Such relegation may not devastate the law. “What the D.C. Circuit Court has been unwilling to do is deal with the law of war,” Swift stated. The problem was, the circuit deferred completely.” One ultimate consequence of the vacillation may thus be deference to another circuit. In that case, the Fourth Circuit may become the star of the litigation game.

Yet D.C. will not end up completely on the bench. Swift noted that “if Obama holds military commissions, ‘enemy combatants’ still have right to appeal the verdict to the circuit court. The Supreme Court is very comfortable with D.C. acting in its criminal capacity.” The courts will also continue to rule on other questions of governmental authority, perhaps unaffected by its Guantanamo experience. Swift cited Campbell v. Clinton in which Judge Randolph accepted the President’s broad commander-in-chief authority as a sign that partisan sentiments will not instigate a retrenchment of executive power. Yet with the international attention brought to the court by the detainee cases potentially shifting to other circuits, D.C. will in the end lose a bully pulpit. The road from 1600 Pennsylvania Avenue to One First Street may thus turn away from the E. Barrett Prettyman Courthouse.

For better or for worse, people will view it as historically significant,” mused Harvard Law Professor Randall Kennedy on the election of the Harvard Law Review’s first black president in 1990. Less than two decades later, the student in question has once again been thrust into the spotlight of historical significance; Barack Obama may soon have the chance to exercise his rigorous legal training by selecting new nominees for the Supreme Court of the United States. Indeed, though he may not have the chance to sway the ideological balance of the Court, consensus in the legal community strongly suggests Obama’s intensive academic experience in law creates a rare opportunity to see the nomination process work as it should.

A Liberal Exodus?

Of course, none of the sitting justices have thrown in the towel just yet. Retirement rumors tend to center on two current justices: John Paul Stevens and Ruth Bader Ginsburg. At the ripe age of 88, Stevens is two years shy of breaking the late Oliver Wendell Holmes’s record as the oldest justice to serve the Court. But Stevens’s advanced age notwithstanding, Harvard constitutional law professor Richard Fallon told the HPR, “He is in wonderful health, loves his job and there’s no reason to expect that he’s eager to retire.” Indeed, though Stevens has more than a decade on the 75-year-old Ginsburg, she is often cited as the one most likely to retire due to several recent health scares. A third and less discussed potential vacancy is the seat of Justice David Hackett Souter. Though his 69 years render him comparatively spry, common knowledge holds that Souter dislikes the D.C. life and that this could prove a most potent rationale for retirement.

If and when any of these Justices retire, Obama will be replacing a liberal member of the Court. Though “liberal” and “conservative” tend to be crude proxies of jurisprudential philosophy, Justices Breyer, Stevens, Ginsburg and Souter form a minority bloc that tends to swing left on key socially charged issues such as abortion and affirmative action. Thus, even if Obama were given the opportunity to replace all three, he would not be tipping the ideological balance currently anchored by a solid conservative majority composed of Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, Clarence Thomas, and Anthony Kennedy.

Because all of the likely retirements are in the liberal minority, and few key socially charged issues ride on the Obama appointments, the nomination process will be vulnerable to a bout of identity politics. For example, in light of Sandra Day O’Connor’s retirement in 2006, the legal community has been predicting a female appointment as Ginsburg’s likely departure creates a tangible pressure to fill the gender vacuum. Age also presents a demographic category laden with political implications. Even if Obama were not to transform the ideological balance of the bench, he would do great service to the liberal camp by replacing the current minority bloc with a pack of relatively young and energetic personalities likely to stay on the Court at least as long as Roberts, 53, and Alito, 58.

A Different Standard

Without doubt, these political pressures would exist for any president with the opportunity to make the first Democratic appointments since 1994. But Obama’s extensive experience and pristine credentials in academic law suggest his nominations may be more than political plays. The first sign of his exceptional legal mind came as president of the Harvard Law Review, widely acknowledged as one of the most esteemed positions a law student can hold. After graduating, Obama moved on to be a senior lecturer at the University of Chicago, where he taught a variety of courses including “Constitutional Law III: Equal Protection.” Speculating as to how Obama’s academic experience might affect the way he chooses nominees, Fallon noted, “President Obama, trained and steeped in constitutional law, is more likely to have a much more nuanced understanding of the way that judges actually decide cases and is actually more likely to be impressed or unimpressed by what he takes to be the power of a person’s legal mind and analysis, the subtlety of his or her reasoning, and methodological consistency.” A more concrete way to assess Obama’s decision, according to Jonathan Hacker, an appellate practitioner and partner at O’Melveny & Myers, is in a candidate’s “jurisprudential outlook.” More specifically, Hacker told the HPR, “nominating men and women with very sophisticated, intelligent approaches to the law doesn’t necessarily make it an ideological decision at all. [Obama] will likely look for those who share his general outlook, which is a liberal one, on how the constitution is interpreted and what sort of tools the judge brings to decision making.”

Irv Gornstein, a former Assistant to the Solicitor General who has argued nearly 40 and briefed more than 60 cases for the Court, told the HPR that this nexus between legal philosophy and everyday politics is captured best by the Court’s opinion in United States v. Carolene Products. The decision ended an era of judicial activism, but invidious prejudice, the Court opined in a famous footnote, threw a wrench in the American political process when it came to “discrete and insular racial and religious minorities,” and justified “more searching judicial inquiry” in cases of extraordinary unfairness. “He’s going to want somebody that lives and breathes that footnote,” Gornstein concluded, “someone who believes that the role of the Constitution is to stand up for the underdogs who get shut out of the democratic process.” On the campaign trail earlier this year, Obama lauded the memory of former Chief Justice Earl Warren for precisely these reasons. Warren’s ability to step outside of his privileged life and denounce school segregation in Brown v. Board of Education embodied his ideal nominee: “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through.”

Empathy, of course, comes in many a form and fashion. Regardless of how profoundly their jurisprudential outlooks resonate with the Carolene footnote, Obama’s nominees will face the not-so-empathetic Senate confirmation process, and the Democrats failure to grab a filibuster-proof 60 seats in November may constrain Obama from reaching too far from the center. Both Gornstein and Jeremy Maltby, a leading appellate practitioner and former clerk to Justice Souter, agree that Obama’s nominations will likely not be as far to the left as President Bush’s appointments were to the right. In any case, Obama’s nominees will have proven a willingness to fight for those systematically disadvantaged by the political process and will have earned a set of legal credentials beyond reproach. In this sense, Obama’s nominees will share his signature brand of liberalism: undoubtedly left-of-center, but calibrated by both an extraordinary capacity and tremendous respect for legal reasoning.