Linda Greenhouse, former NYTimes legal correspondent now teaching at Yale Law, talked SCOTUS the other day. This rings a number of bells for me:
I foresee a bit of a struggle inside the Democratic coalition as to how persuasive a liberal a recommendation they want. Many think, “We need our Scalia” — which is to say a staunch ideological justice, but for the progressive side — but others think that’s not necessarily the only or most effective way to broker discussion on a conservative Supreme Court. Instead you need someone who will work towards the middle.
It’s a mistake to go for ideology only. Because while Scalia has been a staunch and mouthy conservative on the bench, he is far from persuasive with the other justices.
Before Clarence Thomas joined the Court, Scalia was often a lone dissenter. Since the Federalist Society project to cram the courts full of conservative soldiers, Scalia’s had more support. But not due so much to his bench skills as much as an ideological brotherhood.
The real persuasive force these days on SCOTUS is Chief Justice Roberts, whose ideology is firm, but whose social skills are persuasive enough for the real prize. What prize, you ask?
Justice Anthony Kennedy, the swing vote.
What Obama needs is to find a sharp legal mind, an incisive analyst and logician. But also with some practical experience to bring to an academia and federal judiciary-laden table.
Someone who is a persuasive writer who can not only detail the law but also grab the imagination as to why that view is correct. Plus, in the current political and media frenzy climate, he must find a decent, unblemished perfect person.
But President Obama also needs to find someone whose personality will instantly click with Justice Kennedy’s need for ego-boo in order to make a real impact.
Someone young enough to stay on the Court for a long time to come. Someone wily enough to see the chinks in the armor of the ideologically driven arguments on the other side — and call them out, subtly, in memo exchanges (which, after initial arguments luncheons, is the real way that work is done at the Court) based on the law and the facts. And a justice who is skilled at selecting clerks who can be equally persuasive among her/his peers, but do so in a way that is subtle and not ham-handed.
They aren’t just justices, they are human.
To be effective, a new justice must comprehend the full range of the human dynamic from the outset. Because they’ll be working in it for a lifetime appointment. Interpersonal alienation is not an option for success.
Someone who can thread the needle between the GOP’s tactical maneuvering in the Senate, the weakness of Democratic leadership in thwarting filibusters, the our-biblical-interpretation-or-hell-driven absolutism of the religious right, and the anger of the Federalist Society in not getting one more justice before the end of the Bush years.
In short, we need a miracle. Any takers?