With the retirement of David Souter from the Court, Obama has the chance to nominate his first Justice. While his choice won’t dramatically alter the ideology of the Court, since Souter is strongly liberal, it does give him the opportunity to appoint a fresh face and begin to counter the right wing tilt that was bolstered by Bush’s additions of John Roberts and Samuel Alito.
Odds are that Obama is going to pick a woman, and fortunately there are many capable women both in the court system and outside it. Speculation is also mounting as to whether Obama will try to pick a Hispanic or a woman from another minority group, thus further diversifying the Court, strengthening his ties with the chosen community, and scoring political points in the bargain.
The best choice Obama could make would be Constitutional scholar Pam Karlan of Stanford University, who is openly gay.
Professor Karlan is extremely bright; she was one of the main commentators on the NewsHour with Jim Lehrer back in 2000 during the Florida recount battles, and consistently proved to have the most coherent arguments. She is extremely confident and does not shy away from controversy. At 50 she is relatively young, and she has the intellectual heft to help build a serious alternative to the rightwing narrative that has recently dominated the Court and the public’s perception of it. She is just the type of Justice who could persuade other Justices and move the Court, even if only incrementally, in a direction in which every citizen’s rights are better protected.
In an ideal world, the fact that Karlan is gay wouldn’t be an issue. But of course it is. Nominating the first openly gay Justice to the Court would be certain to galvanize the right wing and guarantee a bruising confirmation battle. But it could also do more to advance civil rights and educate the public than almost any other decision Obama could make.
Professor Karlan has one of the best minds in the country; during the confirmation hearings, she would make quick work of anyone who tried to challenge her integrity or her commitment to the rule of law. When pressed whether she would have a “pro-gay” bias, she could easily counter that no one ever asked Catholic males (e.g., Scalia and Alito) whether they had a “pro-male, pro-religious” bias; so much for the notion that being gay has anything to do with following the letter of the law or being impartial.
An openly gay person on the Court would be a huge victory for civil rights, and establish Obama as a President who doesn’t shy away from pushing the envelope. Given his opposition to gay marriage and his hesitancy to repeal “Don’t Ask, Don’t Tell,” it would also go a long way towards answering his critics in the LGBT community and on the Left.
Unfortunately, I don’t think Obama is going to make this pick even though I think he would like to; he doesn’t want to distract from his larger domestic agenda, especially health care, and already the torture issue is threatening to do just that.
Here's hoping that Obama does the courageous thing and nominates Karlan to the Court.
Jason Scorse