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What should Obama look for in a Supreme Court Justice?

By Jack M. Balkin

There is much speculation in the press and the blogosphere about who the replacement for Justice David Souter might be. When I gave a talk to history honors students at SUNY Albany last week, someone asked me who might carry on Thurgood Marshall's legacy. So when the Washington Post asked me what sort of person President Obama should nominate, here's what I told them:

President Obama should nominate someone whose life experience provides a perspective that the current justices lack. Diversity in court appointments is often thought of in terms of the nominee's race or gender. Obama should go beyond simple identity politics. He should choose someone like Justice Thurgood Marshall, who encountered segregation and discrimination and whose law practice was a critical part of the experience he brought to the court. Marshall represented African American defendants in Southern courtrooms and saw firsthand the way the criminal justice system could be stacked against people of color and the poor. He applied that understanding to his work on the bench.

The next justice must understand that legal principles are not simply abstractions but have immediate and long-term consequences in the lives of individuals and communities. Perhaps Obama's nominee will have represented clients in deportation hearings, served low-income families in a legal aid office, or advised gay and lesbian members of the armed services. At this moment in American history, a nominee who has represented detainees at Guantanamo could bring important insights into the court's deliberations and further signal a change in the nation's posture toward human rights.

And for his nominee to be effective on a conservative court, Obama should look for a coalition-builder -- someone able to find common ground not only with Justice Anthony Kennedy, whose vote is often dispositive, but also with more conservative justices.

Full post as published by Balkinization on May 01, 2009 (boomark / email).