Friday, May 1, 2009
With Souter Exiting, Who Will Be Entering?
| With a closely divided Supreme Court, the appointment by President Obama to replace retiring Justice David Souter will be important but probably not pivitol. Obama’s likely left leaning choice will only be replacing the left of center opinions that Souter often offered while on the bench. But all appointments to this lifetime seat on the nation’s highest judicial body are important. The qualities that should be found in a worthy choice are those which demonstrates an emotionless interpretation of the intended direction set forth by the constitution of the United States. By law, Supreme Court justices need not even be a lawyer but by right, to be confirmed, they should really be able to demonstrate an understanding of law and the constitution. I am confident that President Obama will nominate such a person. What I am not sure about is how political his final decision will be. Will his final choice for the nomination be influenced by a desire to sew up a constituency? Will he want to gain favor with Hispanics? Will he want to bolster support among women? He could of course pay back some friends by elevating one of them to the bench. Or maybe he wants to eliminate the role of former adversaries from having a hand in future politics. Maybe Hillary or Bill Clinton want to cap off their careers on the court. Oh, wait a minute. Maybe appointing someone like Bill Clinton who had his license to practice law in the very state he was the Governor of isn’t a good idea. He already made it clear that legal oaths are worthless. President Obama could try to make the abortion lobby happy. He could appoint a leading figure in abortion rights. Than again he may not want to totally tick off the right and give them ammunition or more fuel to throw on the fire by nominating an in your face judicial abortion activist. No matter what though, the current level of entrenched, one party rule will make it so that President Obama is free to appoint whoever he wants, so long as that appointment is as liberal as the now overwhelmingly Democrat Senate wants them to be. Personally I think President Obama will choose the first Oriental-American to sit on the bench. That individual is Harold Hongju Koh. Koh has his M.A.. from Oxford a J.D.from Harvard, B.A., Oxford, and a (Marshall Scholar) A.B. from Harvard, He has been named one of America's “45 Leading Public Sector Lawyers Under The Age of 45” by American Lawyer magazine and one of the “100 Most Influential Asian-Americans of the 1990s” by A magazine. Koh is also a leading expert on public and private international law, national security law, and human rights. He has argued before the United States Supreme Court and he has testified before congress more than twenty times. He has been awarded eleven honorary doctorates and three law school medals and has received more than thirty awards for his human rights work. He is recipient of the 2005 Louis B. Sohn Award from the American Bar Association International Law Section and the 2003 Wolfgang Friedmann Award from Columbia Law School for his lifetime achievements in International Law and currently serving as the Dean of Yale Law School but now taking time away from that position to as he pursues confirmation of President Obama's nomination to be Legal Adviser to the United States Department of State. The Oriental community is growing at a pretty fast pace, especially in states that are leaning blue. As such, Koh’s minority and Oriental status would prove to be a feather in our new President’s political and electoral cap. Probably the most troubling aspects of Koh’s judicial opinions are those which have created debate over his academic writings which redefined sovereignty as “a nation’s capacity to participate in international affairs,”. Many say that he blurs any distinctive national identity. He believes that the way a nation exercises sovereignty responsibly is to accept all United Nations documents and the UN human rights review process," Another interesting and very possible nomination could be what I consider a twofer. Sonia Sotomayor, a Puerto Rican and a woman, was appointed to the second circuit court of appeals by President Bill Clinton. She grew up in a Bronx, New York housing project to eventually make her way to one of the most powerful levels of judicial responsibility in the nation. Sotomayor was helped up the ladder by receiving her first appointment to a judgeship by former President George Herbert Walker Bush and she is generally viewed as a moderate. This might just be a the best choice that the right can expect from President Obama. Other possible nominees include: Deval Patrick, the Governor of Massachusetts. In the Clinton administration he served as the assistant attorney general for civil rights. President Obama and Patrick also are pretty good friends. Elena Kagan who was just appointed the first female Solicitor General of the United States by President Obama might have an inside track here. If the timing of Souter’s resignation was after 2010, Arlen Specter might have been a possible choice. But age is not on his side and Arlen still has to kiss a lot more liberal rings before that favor can be paid back to him. Laurence Tribe is a professor at Harvard Law School where he has over 260 academic publications in the area of constitutional law . His writings of American Constitutional Law, is currently in its 3rd edition, and one of the most cited legal publications in this area. He graduated from Harvard University and Harvard Law School and clerked for Justice Potter Stewart on the United States Supreme Court. Tribe has also argued over 30 cases before the Supreme Court. He is also active in Democratic causes and testified against the Senate confirmation of Robert Bork to the Supreme Court in the 1980's. This could lead to some trouble from conservative Senators who have long memories. On top of all that, Tribe has personal ties to the President who as a student at Harvard Law School, served as a research assistant on a book Tribe wrote about abortion. Considering the ties and experience that Tribe has, as a constitutional scholar and an individual who has never served as a judge, there is good reason to believe that Lawrence Tribe will get the nod. However at 67 and a lengthy paper trail of opinions could, in the end, force that nod in another direction. Than there is Cass Sunstein, a Harvard Law School professor of law who was an advisor to President Obama during his campaign and is another close, personal friend to the President. At 54, Sunstein published over 400 books and articles in the areas of constitutional law, labor law, jurisprudence, and law and economics. Before he joined Havard, Sunstein taught with Obama at the University of Chicago Law School with President Obama. In addition to working in the office of legal Counsel at the department of Justice for a time, Sunstein clerked for Justice Thurgood Marshall. 7th Circuit Court of Appeals Justice Diane Wood is another option. This would probably be one of the most harshly opposed nominee to face the right. She has made a number of controversial rulings in favor of abortion advocates. One of those rulings allowed for the misuse the RICO laws designed to control mob activities to sue pro-life protesters. The Supreme Court has actually overturned her rulings twice. Senators Russ Feingold and Ken Salazar may also make their way onto the Presidents list of nominees. Ultimately I think it will be between Harold Hongju Koh, Sonia Sotomayor and Elena Kagan, with Koh ultimately winning out. No matter who the nominee, I do hope that Republican senators do not take the same obstructionist course that individuals like Chuck Schumer from New York took when John Roberts and Sam Alito were nominated by President Bush. Unless they can find a flaw that disqualifies the eventual nominee because of a pattern of improper conduct or a clear inability to understand law, they should allow America to endure the consequences of the decision we made when we elected Barack Obama President. |
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