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.
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Pleasing to the outside reader, anyway. The weakness of the brilliant justices, or many of them, is that they tend to lag in their ability to wield the second kind of influence: influence over their colleagues. They are good at writing opinions, but less good at building a majority. The reason: People who agree with a position love to hear justices who reject it skewered with a rapier epigram. But people who disagree are not likely to be moved, and that goes double for the justices themselves. No one enjoys being on the receiving end of a laugh line.Skip to next paragraph
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And so Scalia is also notable as a justice who has been unable to get majority support for many of his positions, even on a court with seven Republican appointees. Felix Frankfurter, another titanic intellect, met a similar fate. For years he explained patiently to the other justices just how stupid they were for not seeing things his way. Astonishingly, they never came around.
One need not always choose between the two kinds of influence. William Brennan, who had some pretty good lines, was also a master at forging consensus. He knew, as Justice Souter once put it, how to count to five. But if an appointing president has to lean in one direction or the other, a coalition-builder is better than a genius who alienates potential allies. On the Supreme Court, stylistic facility will not win votes. Sheer intellect will not do it either, nor a sound-bite judicial philosophy. Scalia's originalism doesn't win even his vote sometimes – you will search his affirmative action opinions in vain for any reference to the original understanding of the equal protection clause.
Given the circumstances Obama faces, his need to appoint someone who excels at the second kind of influence is great. Replacing Souter will not increase the liberal bloc. Other liberals – Ginsburg and Stevens – are widely considered the justices most likely to step down next. For the near future, then, victories can be won only by getting the vote of one of the five more conservative justices, most probably Anthony Kennedy.
For that task, it will matter very little whether Obama's nominee is brilliant, or whether her opinions draw chuckles in law school faculty lounges. Her influence will lie not in the voice that speaks to the public but rather in the lower tones that carry no farther than the marble halls of One First Street.
Kermit Roosevelt, who clerked for Supreme Court Justice David Souter, teaches law at the University of Pennsylvania's law school.