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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Obama’s SCOTUS Short List and the ‘Empathy Standard’

After reading a dozen or so bios of potential nominees to replace Justice Stevens, I’m much impressed by the talent pool of prospective justices said to be under consideration by President Obama. I know the available internet bios probably leave out more than they include, but they do provide a sense of what these individuals are about.
There are no names on the ‘short lists” I’ve read that I would oppose, unlike the Bush appointees, all of whom should have been Borked, IMHO. Glen Greenwald and others have made a case for concern about putative front-runner Elena Kagan. On the one hand, Kagan reportedly did an outstanding job of representing the Obama Administration in the Citizens United v. FEC case, even though the high court’s reactionary majority ruled the wrong way. That’s important in a nation where corporate power is not only unchecked, but growing.
Greenwald argues, however, that it’s very hard to figure out what Kagan stands for, other than mastery of the law. There is no question that she has a brilliant legal mind, and her academic credentials, like all of the short-listers are very impressive. But published evidence in her bios of the “empathy” President Obama has said is an important quality to look for in judicial nominees is a little thin. No doubt, she has more empathy than she has shown thus far, since she clerked with Justice Marshall and the President knows her character.
Most of my progressive friends, especially the lawyers, are hoping that Judge Diane Wood will get the nod instead of Kagan. More than Kagan, Wood has a record that indicates her beliefs in the context of the law. Like several other judges on the short list, Wood’s record indicates fairly strong empathy for the disadvantaged, if not a great passion for the underdog. The same can be said for other judges said to be under consideration. True, neither Justice Douglas or Brennan displayed all that much empathy before their years of service on the high court, but they nonetheless set the progressive standard I would like to see more of among the Supremes.
Other names of the growing list of possible Obama appointees include: Rueben Castillo; Merrick B. Garland; Pamela Karlan; Harold Koh; Martha Minnow; Janet Napolitano; Deval Patrick; Leah Ward Sears; Cass Sunstein; Sidney Thomas; and Elizabeth Warren.
I have confidence that whoever the President nominates will have impeccable legal credentials and solid progressive values. In terms of measuring up to a high “empathy standard,” however, one name on the short list stands out, after reading the bios: Governor Jennifer Granholm of Michigan.
After considering the impressive but very dry legal achievements chronicled in the bios of the others, Granholm’s bio provides a strong impression of a public servant who cares deeply about working people and their struggles for a decent life, and that this concern would be at the center of her decision-making. As Michigan Governor, for example, Granholm not only signed into law, but also proposed the “No Worker Left Behind” act which provides two years of free training/community college for unemployed and displaced workers, which has benefited more than 100 thousands in her state. She fought tenaciously against budget cuts for homeless shelters and mental health agencies, challenging her foes to not turn their backs on ‘the least of these.”
While her legal gravitas and experience may not match the lofty achievements of Kagan, Wood or some of the others, Granholm has some impressive legal creds of her own, including a Harvard J.D., an appeals court clerkship and four years as Michigan A.G. In addition, she has lead an energetic, well-rounded life, with varied working experience. Of course it’s much easier to convey such an impression, when your operative base is a political career, instead of a purely legal one, as is the case for all of the sitting justices. But it would be good to have at least one Supreme Court Justice who has been actively engaged in creating changes to improve the lives of people. Any of the Obama short-listers would merit support from progressives. But this is one I would cheer.

One comment on “Obama’s SCOTUS Short List and the ‘Empathy Standard’

  1. Andrew Sabl on

    Another advantage of a Granholm nomination would be that she was born in Canada. That’s no constitutional bar, and no rational bar either—but it might evoke a xenophobic reaction from extreme Republican base voters (and senators) that would discredit them in the eyes of everyone else.


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