Monday, May 4, 2009

Really Big Shew

There's something of a consensus that all the leading candidates to replace Justice Souter on the United States Supreme Court are essentially interchangeable, and the appointment will exchange a liberal for a liberal and not make a difference. What the smart liberals want, however, is to find someone who could become a real intellectual leader for liberalism on the court. Someone who could make arguments for judicial liberalism that hang together, someone whose opinions could make law students say "that's what a judge should be". Through a combination of bad luck and missed opportunities, liberal jurisprudence hasn't had such a person since the early 50s with Brandeis and the younger Frankfurter.

I think the left may have their candidate in Professor Kathleen Sullivan of the Stanford Constitutional Law Centre, former dean of Stanford Law School. Laurence Tribe described her as the most brilliant student he ever had. Sullivan has an uncanny ability to write about law with analytical rigour but in a way that can be easily understood — she thinks like a lawyer but writes like a human being. In public appearances she is soft-spoken, genial — and cute, which never hurts. Republicans trying to beat her up in the hearings will look bad — which is reverse sexism but why not take advantage?

Sullivan is the Bizarro Scalia, different in gender, judicial philosophy, and temperament. While Scalia's belligerence often turned off so-called moderates like O'Connor and Kennedy, Sullivan's charm might help reel in the types who don't know what they really believe.

The kicker is that Kathleen Sullivan is a lesbian. Should that stop Obama? I would say no. That might work, when the political gains and losses are computed, to the benefit of the Democrats. Some conservatives are sure to say some intemperate and inappropriate things about her sexual orientation. That will only assist Democrats in their attempt to portray the GOP as nothing more than a collection of bigots.

I don't know if Obama is willing to throw the long bomb or not. My sense is that Sullivan's biggest obstacle will be Obama's preference to go with people he knows from Harvard or Chicago. Tribe-Sullivan-Obama may not be close enuf.

She has one embarrassing negative: she failed the California bar exam the first time she took it when she moved out there. I imagine this will provide some good clean fun for Republicans but don't see it as a dealbreaker.

Further reason for Sullivan: Jeff Rosen has a story up in The New Republic suggesting that the woman on the top of most lists, Judge Sonya Sotomayor, just isn't smart enough.

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