The news of Justice David Souter’s retirement adds another challenging task to President Obama’s already full plate. There is any number of qualified candidates so the challenge is merely a political one.
Everyone seems to think Obama will choose a woman. I agree that women often bring a different perspective to life and its conundrums, and so would likely bring a different perspective to the application of law. The same holds true for picking a Latino or a Latina, which would place the first Hispanic on the Court. Of course, Obama has no idea how many more appointments he may make so the temptation to appoint someone he really trusts, like Gov. Devall Patrick, must be strong. Whomever he picks must, of course, be liberal enough to satisfy his base without being so left of center as to alter Obama’s carefully crafted image as a centrist in governing.
All of these considerations have candidates appropriate to the political dynamics noted above. But there is one person who selection transcends all the different classifications and whose selection would – instantly – galvanize the entire Democratic Party because it would entail the righting of an injustice that was simultaneously specific and so egregious as to appear cosmic. President Obama should nominate Al Gore to the Court. The choice would be electrifying.
Some will object that Mr. Gore is not even a lawyer, which is true. But, there is a long tradition of having those with legislative or executive experience on the Court, a tradition that has fallen by the wayside as Presidents have sought nominees with little or no paper trail. Earl Warren was a lawyer, and had served as attorney general of California, but it was his stature as a three-term Governor who was nominated by both parties for the job that earned him the nod for the Court in 1953.
Mr. Gore spent sixteen years in Congress making laws, serving in both the House and Senate. He served eight years in the executive branch enforcing laws. All this without a law degree.
Ultimately, the case for a Gore appointment is simple. Conservative jurists justify their rulings by appealing to abstract principles such as "strict construction" or "original intent of the Founders" this last despite the fact that even a modicum of historical familiarity with the Founding shows that the Founders had many and varied intentions for the Constitution they crafted. Liberal jurists care about the real world effects of a law. No one has been the object of both conservative hypocrisy (whither states rights?) and a very nasty real world application of the law in the way Al Gore was in Bush v. Gore.
I suspect President Obama will have other nominations by which he can bring other perspectives to the High Court’s proceedings. Mr. Gore might not even desire the appointment. But, in one stroke, Obama could avoid any intra-party grumblings and show to all the world that injustice can be rectified.
