I remember well when William Brennan retired from the Supreme Court in the summer of 1990, eventually to be replaced by a New Hampshirite named David Souter about whom very little was known. As a sensitive and desperately undersexed 17 year-old, I wrote a long non-rhyming poem that, among other things, lamented Brennan's retirement; a year later, Fugazi put out a song that carried the same message, but rocked a lot harder.
Souter, however, turned out to be a pretty fair justice--an enormous disappointment to the militant Republicans who championed his nomination, and an unlikely hero to the liberals who initially viewed his appointment with dismay. When he announced his plans to retire last week, the right took one last opportunity to boo and hiss a man they regarded as a betrayer before starting the pre-emptive demonization of whoever will replace him. I thought this recent article made an important point, though: Souter could credibly argue to be a "judicial conservative," in that he showed a consistent deference to legal precedent and a sympathy to the notion that overturning established legal norms would create chaos within American jurisprudence as well as in the affected domains of policy.
Perhaps not surprisingly, this is the kind of conservatism I can get behind: a reluctance to change too much too fast, or to impose an unambiguous, ideologically driven preference upon a public far more divided in its views. In the realm of policy, this likely constrains liberals more than conservatives: it furnishes the most compelling argument against blowing up the current patchwork of health coverage in favor of a single-payer system, for instance. In matters of law, however, this is exactly the sensibility that the likes of John Roberts and Sam Alito seem most determined to sweep aside--hence their decisions gutting school desegregation and aggressively reinterpreting the Second Amendment, among other matters previously thought to be settled. There are few more bitter ironies in public life today than self-described conservatives bemoaning "judicial activists," when the judges most determined to discard precedents and impose their own views from the bench are all now found on the far right.
I think one would have to go back to Lyndon Johnson's presidency to find the last "activist liberal" appointed to the Court. One question now facing President Obama is whether he will seek to replace Souter with a Roberts or Alito of the left, or a Souter-type champion of judicial restraint. Another way to frame this choice is whether Obama's ideal justice would more regularly do battle with conservative ideologue Antonin Scalia, or seek to bring the consistently inconsistent Anthony Kennedy over to the liberal side.
Among the rumored candidates for the nomination is Judge Sonia Sotomayor, who would be the first Hispanic justice and third woman ever appointed. Sotomayor first got public attention--and won a permanent spot in my heart--in March 1995, when she issued the injunction that ended the baseball strike. The evolving debate over her possible nomination offers an interesting window into the state of our national discourse: coincidentally or not, the right's emerging critique of Judge Sotomayor--that she's possessed of a second-rate intellect and an obnoxious temperament--aligns almost perfectly with the stereotypical denigration of Puerto Ricans from the Bronx; she happens to be a Puerto Rican from the Bronx. Glenn Greenwald offered a devastating takedown of this smear against Sotomayor earlier this week that's well worth a read.
I've always found the Supreme Court pretty compelling anyway (did I mention I wrote a poem about William Brennan's resignation when I was 17?...), but Sotomayor's prospects for elevation especially so because I know her--very slightly--socially.
The judge presided at the 2005 wedding of one of Annie's friends, a lawyer who had met her professionally and struck up a friendship, at a private residence in Connecticut. At the reception afterwards we talked about baseball a bit; she's a huge Yankees fan, as you might expect from a Bronx native. She's not, however, very fond of Alex Rodriguez, whom she claimed couldn't hit in the clutch. (I disagreed then, both on the grounds that clutch hitting doesn't exist and that the guy had delivered in enough big spots to discredit the argument; four years later, I'm not as sure about either point.) She was also at a party in Brooklyn thrown by the same friends a few months later, and wound up giving Annie and me a ride into Manhattan at the end of it--during which she solemnly pronounced that she could tell we were "a good couple."
Obviously this doesn't have much to do with whether she would be an effective Supreme Court justice. But I'll admit it has me rooting for her appointment.