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Opinion

Fill Souter's shoes with a genial persuader

A liberal appointee wouldn't affect the court's rulings much. A liberal who can coax conservatives would.

By Kermit Roosevelt / May 4, 2009



Philadelphia

Filling the shoes of Supreme Court Justice David Souter, who announced his retirement Friday, will not be easy. I clerked for Justice Souter in the 1999-2000 term and left that job with a respect for the judge matched only by my affection for the man.

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It's been said that President Obama's appointment won't be a transformative one. That's true in one sense. Justice Souter generally voted with the moderate to liberal justices, and his replacement will almost surely do so also. In terms of net votes, the liberal/conservative balance will not change. But the vacancy offers Mr. Obama an early opportunity to make a lasting mark on the country.

That's because he can do more than appoint a reliably liberal jurist – which wouldn't greatly affect the court's rulings. He can appoint a jurist with that rare ability to persuade her conservative colleagues – which emphatically would affect the court's rulings.

Such a quality will be vital in the years ahead. Think how many crucial issues – from the 2000 election to gun control to eminent domain – have been decided by 5-to-4 rulings in recent years. Obama's nominee may well serve on the bench for the next 30 years. In just the next few years, her ability to build a coalition, or lack thereof, could decide the answers to such high-stakes questions as abortion, same-sex marriage, race-based affirmative action, and privacy.

Thus, the community-organizer president needs to pick a coalition-builder justice.

As my pronoun choice suggests, I think Obama should pick a woman. The sexes plainly have different experiences, and a woman will bring to the Supreme Court a life history and set of understandings a man would not. That the current court consists of nine former federal court of appeals judges has been thought problematic. It is surely as important to have women on the court as it is to have people with experience in legislatures or executive office, especially when well-qualified female candidates abound.

As Obama considers how to maximize the impact of his selection, he should bear in mind that justices exert influence in two ways.

The first is through their writing. A good literary style can go a long way toward winning popular acclaim. If it is coupled with obvious intellectual power and a judicial philosophy that can be summed up in sound bites and zingers, so much the better. A brilliant justice with a knack for the mot juste will see his memorable phrases repeated by lower court judges and law professors. He will gain plenty of acolytes outside the Supreme Court.

Oliver Wendell Holmes, who coined the phrase "clear and present danger," is a good example of this sort of influence; so too is Robert Jackson, who warned "We can afford no liberties with liberty itself." Both were very smart; both are frequently quoted. On the current court, one of the smartest justices, and probably the best stylist, is Antonin Scalia, who turns a phrase with a pleasingly wicked point.

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