We here are big fans of Judge Sotomayor – even if she is a serial violator of Rove’s Law (“Never attempt to say anything insightful, comical, or otherwise geared to provoke independent thought, if it can be quoted out of context in a manner likely to ‘offend’ right-wing sensibilities”). As near as we can tell, she’s likely to defend the right to choose, and potentially even advance the strong incorporation of gay rights into the Equal Protection Clause.
However, I admit of this nagging doubt: she is not the daring, or even provocative pick that we on the left would hope for, and deserve, from the Obama administration. Let’s face it – the current Senate would probably confirm Morbo the Annihilator, if Obama asked them to. We should be using this opportunity to put a true liberal lion(ess) on the bench, someone with the rhetorical talent of Antonin Scalia, the progressive sensibilities of William Brennan, and the insight of Sandra Day O’Connor. Admittedly, Judge Sotomayor may be just that, but we’ll have to wait until July 13th to find out. That means we have to endure another month of Republicans oversimplifying the role federal judiciary and coasting on sham charges of “racism,” destroying any possibility of substantive dialogue. Too bad: although it’s easy to see why he wouldn’t want to (think “How to Lose Your Political Capital in 200 days”), nominating a forceful academic, with a record of advancing controversial but unassailable progressive positions, could force a discussion of the nature of constitutional democracy from which (*gasp!*) the public might actually learn.
Depending on the substance of her confirmation hearings, we might not get this type of productive discourse at all this time around. But because Obama will likely have to fill two more Supreme Court vacancies to fill in his first term (Stevens is 89, and Ginsburg, sadly, in poor health), we’ll probably get another chance. Here’s how to take it:
Professor Pamela Karlan for the Supreme Court.
Professor Karlan is roundly regarded as a “liberal Scalia,” the kind of jurist who not only “pushes the envelope” on social issues, but does so brilliantly, and from a firm intellectual foundation. By way of example, the arguments for gay marriage found in her writings are sensible, accessible, and syllogism-like in their simplicity and completeness, making her a daring but defensible nominee: while her writings would immediately come into issue, any debate would be on the President’s terms. This type of nominee is generally less trouble than you’d expect. Justice Scalia, for example, came to the Senate with an ample paper trail, but won confirmation in a stunning 98-0 vote. Admittedly, that was a different time, but the Roberts confirmation hearing should be ample proof that Senators have a hard time opposing competent nominees, regardless of their politics.
Her intellect alone more than qualifies her to sit on the nation’s highest court. But demographically, too, Karlan would be an expert pick: she’s a woman, and openly gay. Both are assets. The Court needs more women. And cases like Lawrence v. Texas – which emphatically refused to treat homosexuality as a serious personality trait – prove that, even when they get the law right, the current Supreme Court doesn’t understand the importance of gay rights. From her writings and her personal stake in the matter, I’d venture to guess that Professor Karlan could provide this absent perspective.
Make no mistake, Karlan would be a risky pick, no matter what Sen. Jeff Sessions (R-AL) promises today. But her intellectual stature, and the productive discussion that her nomination would generate, make it a risk worth taking. I understand why Obama needs an easy confirmation now. It is, after all, still his first 200 days, and his White House certainly has enough on its plate at the moment. But given the uniqueness of this moment in history, and President Obama’s apparent political genius, it would be a shame to not see this White House use a difficult Supreme Court confirmation battle to restore the tattered image of the progressive Court. Expanding constitutional freedoms to worthy groups is a virtue, not a vice, and it’s high time we remind the American people of this simple, vital truth.