Okay, let’s have a show of hands here: How many of you progressives want Obama to nominate a moderate to take Scalia’s seat? Because the Supreme Court should always be comprised only of arch-conservatives and a few moderates. How many want a former prosecutor, on the theory that the federal bench does not already have enough former prosecutors, and because the Supreme Court is just toooo pro-non-white-collar criminal defendant and tooo favorable to civil rights plaintiffs involved in the criminal-justice system?
Or how about another former Washington corporate mega-law-firm partner? Like John Roberts?! Only moderate. I mean, but what if he or she is an Asian? And would be the first Asian on the Court?! Or a woman? Or, and a woman?
Or what if she’s a woman whose husband is a military reservist?! Or is a black former prosecutor, no gender preferred? Or has political experience?! (These are all actual shortlisters.)
Oh, stop. Just stop. Please. Really.
The list of shortlists published since Scalia’s death was announced about 24 hours ago is long, as are some of the lists. And two or three of those on the lists are actual progressives. But the overwhelming majority are not. These assembly line lists do reflect what are considered the political realities, and Obama is widely viewed by non-Republicans as a political-realities type of guy.
Including by me. And by Hillary Clinton. And by Bernie Sanders.
But one of us three believes that there is a special place in hell for Democratic politicians who criticize President Obama as insufficiently progressive. A place assigned by African-American voters, at least in the South, and especially in South Carolina. The other two of us beg to differ.
Had Justice Scalia’s death occurred a few weeks before the South Carolina primary rather than eight days before, these opposing views might have been put to the test. Obama might by now have nominated a Black or Asian-immigrant or female moderate whose name appeared first on his long shortlist and then on his short shortlist by dint of the algorithms that produce such shortlists. Clinton would shout her support from the hilltops of the Blue Ridge Mountains, Sanders would criticize her for shouting, and Clinton would shout: sexism.
But Sanders also would criticize the choice, further securing that special place in hell. Or maybe not securing it, since this is 2016, not 1996 and not even 2006.
Actually, although the shortlist list-makers mostly haven’t noticed, this is the age of Ferguson, of Eric Garner, of Sandra Bland, of Walter Scott, etc., etc. It is the age of (as Ferguson is a poster town for) extraordinarily inappropriate bail requirements. It is the age of the funding of local government via exorbitant traffic fines, petty (trumped-up) ordinance-violation fines, metastasizing court fees, and prison fees. It is the age of extremely belated (but extremely welcome nonetheless) broad public recognition that prosecutor misconduct is commonplace (and is tacitly invited by opinions issued by the Supreme Court in a variety of cases).
And it would be deeply offensive for Obama, or for that matter a second President Clinton, to nominate another Elena Kagan—or anyone who has no background in representing non-white-collar criminal defendants, especially in state courts or in federal habeas corpus cases that challenge state-court convictions, or related types of civil rights litigation.
It’s now permissible to mention the interests of the people whose lives are most profoundly and most directly affected by Supreme Court appointments. Really.
My suggestions for Sanders’ (preferably very, very) shortlist, each of them with impeccable credentials and awesome accomplishments, are Jeffrey Fisher, the head of Stanford Law School’s Supreme Court Clinic, and Robert L. Wilkins, an Obama appointee on the D.C. Circuit Court of Appeals.
Fisher is not on anyone’s shortlist but mine, to my knowledge, but should be. Among the shortlists that I’ve read, Wilkins appears only on one: Slate’s Dahlia Lithwick’s. She writes about him:
Robert L. Wilkins (D.C. Circuit Court of Appeals): Age: 53. Wilkins, a black American who was raised by a single mom, has a law degree from Harvard Law School and served as special litigation chief for the D.C. Public Defender Service. Wilkins gained attention for civil rights battles he has waged, including a precedent-setting fight against police racial profiling in Maryland, and for his work on the National Museum of African American History and Culture.
Wilkins was not on my radar screen until I read Lithwick’s article today. He now ties for first place on my list. I’d love to see them both on the Court.
Another name on Lithwick’s list, Goodwin Liu, has been on my radar screen for a long time. Lithwick writes about him:
Goodwin Liu (California Supreme Court): Age: 45. The son of Taiwanese immigrants, Liu was an Obama pick for a seat on the 9th Circuit in 2010 but was blocked by Republicans. He has distinguished himself as a left-leaning moderate on California’s high court. Given his prior confirmation battles, this would be an especially heavy lift.
His 2010 nomination to the 9th Circuit Court of Appeals was filibustered by Senate Republicans because as a law professor at UC Berkeley in 2005 he gave strong testimony against Samuel Alito during Alito’s confirmation hearing. He predicted that Alito would be exactly the kind of justice that he is.
Lui as a high-profile liberal law professor at UC Berkeley was outstanding. But I read not long ago (I can’t remember where) what Lithwick says in her article: that he’s more moderate than expected as a state Supreme Court justice. I don’t know what the specifics are. But he’s brilliant and presumably is navigating a course geared toward another nomination to a federal appellate court or to the Supreme Court.
A bonus if Lui’s nominated: the highlighting of exactly how spot-on he was about Alito. And an education for the public about the specifics of Alito’s tenure as a justice. As well as the fun of imagining the childishly thin-skinned Alito suddenly faced with the prospect of possibly having Lui as a colleague. (That’s three bonuses, not just one. But he’s still only my third choice.)
If Sanders is willing to soon have a tentative shortlist, I dearly hope he will borrow mine. It’s not copyrighted. And I have no pride of authorship.