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Symposium on the Souter seat

It's at Reason magazine, and I'm among the contributors. Here's the text of my contribution:

Who should Barack Obama nominate for the Supreme Court and why?

Walter Dellinger III is a Duke law professor and former Clinton Justice official whose expertise in separation of powers, civil liberties, and business law would seem to match those of any likely liberal Democrat. By praising him, I'm afraid, I've utterly doomed any chances he may have had. Sorry, Prof. Dellinger.

Who will Obama nominate and why?

Obama is grounded in today's legal academia, so the candidates he's most comfortable with would fit recognizably in the academic milieu. Like all presidents, though, he'll consult the political winds and constituency demands. Elana Kagan would breeze to confirmation.

Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?

The "empathy" theme is politically golden for him, since on one level almost anyone agrees that judges benefit from having empathy, dealing constantly as they do with the stuff of human nature. Others, of course, will discern a signal that he wants judges who will rule for the little guy. I suppose we'll find out later which he meant.

What issue(s) will dominate the court over the next three years and why?

Replacing David Souter by a (marginally more liberal?) newcomer isn't the main game here. Every few years some new type of legal case arrives with the potential to shake up the old Court line-up. With the federal government rapidly grabbing quasi-executive authority over industries like finance and auto production, will--and should--the Court's conservatives uphold as an ideal the importance of deferring to the elected branches?

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.