In justice-picking, as with health care, financial regulation, or energy policy reforms, real-politik requires a fine balance. My fellow progressive advocates who are urging President Obama to select a certified liberal – one who can do battle with the right wing of the Court—to fill the seat of retiring Supreme Court Justice John Paul Stevens are using the wrong test. The President should be using a “persuasion index” in making his pick.
Reports today indicate that the announcement of the next nominee could come as early as Monday morning, or even as a leak on Sunday night. Those same reports suggest that Solicitor General Elena Kagan is the choice from the rumored “short list” that also includes U.S. Appeals Court Judges Merrick Garland, Sidney Thomas, and Diane Wood, some of whom were former colleagues and acquaintances.
At least until the nomination is official, some in the progressive base are not happy with these choices. They want the President to pick a certified liberal, ready for hand-to-hand combat with the current conservative majority. In this way, their argument goes, the President can demonstrate his commitment to liberal values and progressive jurisprudence.
But this is the wrong test. The best way to show the commitments progressives demand is for the President to select someone who scores high on a “persuasion index.” And the key factor in that index should be whether the potential nominee has the smarts, skills, and talents to consistently win over Justice Kennedy and at least one of the other justices. Those skills will limit the damage from this conservative Court’s cramped right wing interpretations of the Constitution and statutes – interpretations that resulted in opinions in cases like Ledbetter and Citizens United.
Supreme Court history shows that commitment to an ideological agenda is more likely to result in strong dissents than in majority opinions. Justice Scalia’s record teaches that lesson. A new Justice who specializes in dissents will not contain the damage of Roberts Court. But a new Justice who can win over a few votes in key cases offers the best hope for the Court to return to its proper role as the ultimate protector of our rights in the American justice system.
Each of the people on the President’s reported “short list” has demonstrated skills to score high on the “persuasion index.” Progressives should be more than satisfied with any one of these outstanding potential nominees.