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Balance, Not Consensus for the Supreme Court

The Republican Party has been very good at establishing right-wing justices for the Supreme Court. The striking examples here are Roberts and Alito; Thomas is indeed a far right justice whose is therefore quite ineffective except as a stable vote for the far right and a stable for clerks who seem to get associated with the ‘unitary executive’ and ‘torture memos’ later in their careers. In any case, all of these right wing justices interpret the constitution consistently from an oligarchic point of view.

Given this circumstance, President Obama and the US Senate must be careful to redress the balance with a strong jurist, not pick a statesman who can help establish consensus. A statesman like Earl Warren could only be effective as a consensus builder because figures like Brennan and Marshall were already on the court. And as the Los Angeles Times notes today: ‘Though Clinton’s appointees — Ginsburg and Stephen G. Breyer — have voted reliably on the liberal side, neither has been a champion of social justice in the style of Justices William J. Brennan and Thurgood Marshall.’

It is time to pick a intellectual strong and impeccably clean jurst (no pot with law students, no nanny issue please) who has a detailed and sophisticated social and democratic interpretation of the constitution to confront the oligarchic and presidency-biased character of the present court opinions. This is not about ‘activists’ and ‘liberals’ versus some kind of original intent. The speciousness of this sort of claim is quite evident by considering the question of war powers in relation to the Congress and the Presidency as interpreted by the Court over the last eight years.

For that reason, as Meteor Blades at Daily Kos notes, the Dean of the Yale Law School, Harold Koh, would be an excellent choice of many others on Blades’ helpful list.

Other names to be considered in addition to this list:

Kathleen Sullivan

Mark Tushnet

Robert Gordon

Arlen Specter as the 60th Vote
Arlen Specter, when a qualified social and democratic interpreter of the constitution comes to nomination of the power and coherence of a Brennan or a Sullivan, needs to be reminded that his impulsiveness during the Clarence Thomas hearings and his attacks on Anita Hill were one of the key turning points in establishing on the court its most far-right wing and undistinguished member since the end of World War II at the least, namely Clarence Thomas.

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