President Obama soon will nominate a successor to Supreme Court Justice David Souter, who announced his intention to retire at the end of the court’s session in June. With Justice John Paul Stevens recently celebrating his 89th birthday, and 76-year-old Justice Ruth Bader Ginsburg battling pan-creatic cancer, the president may have to make more appointments to the high court.
Though presidents typically espouse that they seek only knowledgeable, wise and prudent jurists, not those with an ideological bent, the truth is that judges are a way for a president to achieve his agenda. Federal courts are far more political than justices would admit publicly. President George W. Bush may have nominated John Roberts and Samuel Alito, at least in part, because they may privately believe Roe v. Wade should be overturned. Democratic senators, during confirmation hearings, typically formulate every possible permutation of question about abortion, and the nominees contort themselves in not answering directly.
With a Democrat in the White House, the abortion question probably will not be the key litmus test (other than assuring a belief that abortion remains legal). So what sort of judge, with what set of values, should President Obama seek to include on the court?
The president would do well to consider a woman. Currently, just one woman sits on the court, and as noted, Justice Ginsburg has health concerns. Women continue to lag in pay, and, as mothers, continue to raise issues relating to child care and maternity leave.
On broader ideological considerations, a judge who believes strongly in the right to privacy would serve the nation well at the dawn of the 21st century.
New questions on the nature of privacy arise with each new technological innovation. The government, and private business, has the ability to gather phenomenal amounts of information about each of us; where we move in the course of the day, where we spend our money, to whom we talk, text and e-mail and what we read online. The Constitution’s guarantee of privacy relates to police powers, but the framers could not have anticipated the amount of privacy we must abdicate just to live our daily lives.
The Bush administration made frighteningly intrusive forays into our privacy in the name of protecting us from terrorism. It will be difficult, given the availability of personal data, but the court must be the bulwark against impulsive politicians ready to allow government a peek into our windows.
A new justice also should have a more clear sense of the balance of power within the federal government. Again, President Bush expanded the powers of the executive branch in alarming ways; Republicans who stood by and cheered that expansion probably are not thrilled that those powers now lie with a Democratic president, buoyed by a Democratic Congress.
If he really wants to set a post-partisan tone, Mr. Obama should tell Americans these are the judicial values he is seeking. Most Americans would agree with them, and we could avoid the silly posturing of confirmation hearings.