Supreme Court picks are like children. Presidents establish part of their legacy through the policies they propose and turn into law of the land, their executive decisions, their cabinet and its own activity, and their popularity with the country and the world. There is no other path to building a legacy, however, that is more pervasive, and possibly personally damaging than filling a Supreme Court seat. The picked often communicate the political ideology of their president, but sometimes they end up becoming a mislabeled species–they bite the hand that fed them, they decide they want to be stand-up comics rather than follow the family’s line of doctors.

After Justice David Souter’s exit this coming June, President Obama has the chance to have one of his own (yep, still on the children analogy). Souter tended to straddle the line, leaning increasingly to the left as the Bush (W.’s) years wore on him. The other Bush (H.) first placed Souter on the bench, believing he would follow the moderate-right path he expected from him. Like many children, he frustrated or disappointed his pops more often than not

Souter will open up a seat in a Court that needs another conservative judge like Cheney needs more airtime. Many expect Obama to pick either a woman or a minority, but there is very little consensus on where his pick will fall ideologically. This makes sense. Obama’s own ideology is uncategorizable, and at best can be called liberal pragmatism or realpolitik lite. But what about a person who is chosen to make definite decisions on the most public legal cases in the land. Once a vote on any given case is made, that vote stands alone, there is no promise of hearing another similar case to add some nuance to your position.

Mary Dudziak of Balkinization provides a clear and powerful criteria for Obama’s Supreme Court pick. In essence, Obama must add some actual diversity to the Court. Diversity is typically associated with race or gender, but in this case, it needs to be diversity of life experiences. From Balkinization:

The next justice must understand that legal principles are not simply abstractions but have immediate and long-term consequences in the lives of individuals and communities. Perhaps Obama’s nominee will have represented clients in deportation hearings, served low-income families in a legal aid office, or advised gay and lesbian members of the armed services. At this moment in American history, a nominee who has represented detainees at Guantanamo could bring important insights into the court’s deliberations and further signal a change in the nation’s posture toward human rights.

Obama’s pick must resemble an unrepresented slice of society, a knack to allow creative tension in their decision-making, and collaborator rather than a stubborn ideologue (there are plenty of these already in the Court, thank you). The question now is, who will be the Cinderella?

Souter the Loner, from NYT

You might want to check these out, too:

• The Anti-Samson
• Ain’t No Party Like a Tea Party
• Cooking the Sausage
• ObamaCare Part II: Push, Pull or Drag it to the Finish Line.

Tags:   david souter · obama · supreme court1 Comment