If there is one branch of government that Americans want to be nonpartisan, it is the court system. But even the Supreme Court itself can't seem to achieve that – thus the need for an odd number (nine) of justices on the bench.
That's why President Obama will be hard-pressed not to simply replace the departing Justice David Souter with someone who similarly throws impartiality to the winds. Or someone who takes the easy route of bringing a political approach – in this case liberal – to justice.
During his campaign, Mr. Obama promised to bring change to Washington's partisan ways. His picks for lower court judges so far hint he will nod to some GOP concerns in nominating a Supreme Court justice. But trying to find someone who wears a red-blue mix of political stripes misses the point about courts being neutral arbiters.
Obama says he wants judges who have "the heart, the empathy ... to understand what it's like to be poor, or African-American, or gay, or disabled, or old." Such goals are noble – for a politician. But that requirement butts up against the federal judicial oath. Judges must swear to "administer justice without respect to persons, and do equal right to the poor and to the rich."
The president is likely aware that Americans perceive more partisan bickering in Washington since he took office, not less. Fault lies with both parties. But the rise of independent voters – who now number more than Republicans – suggests a greater public desire for more light than heat in all governance. And Obama must recognize the large gap in his approval ratings between Republicans and Democrats – far more than the gaps for Bill Clinton and George W. Bush.
As a former law professor, Obama knows the high court cannot continue to be another partisan battleground without eroding the public's faith in courts as dispensers of blind justice.
He could ask a nonpartisan panel of judicial experts for help in selecting a nominee. (The American Bar Association has lost its nonpartisan reputation as a vetter of nominees.) But he is under strong pressure to pick someone who fits either a test of gender and ethnicity or who must pass litmus tests on hot-button issues, such as abortion.
Where is the litmus test for the kind of impartiality that would interpret the Constitution without preconceived notions?
Of the many political issues that Obama has tackled so far, such as the stimulus package and a budget resolution in Congress, bipartisanship was largely missing. Trying to achieve nonpartisan in the selection of a justice will be even more difficult.
But a "Yes, We Can" president who wants to leave the old bickering behind might be able to do it.