OK

Obama picks some good nominees.  "BFD" Biden; Hillary Clinton; Sonia Sotomayor; Eric Shinseki and Tammy Duckworth at VA; Eric Holder as AG; Neal Katyal as Deputy SG; you've probably never heard of Lisa Heinzerling, but she's now advising the EPA after successfully suing the Bush Administration to compel them to regulate greenhouse gases (let's just say, if we ever actually do make a monument to the people responsible for saving us from climate change, she'll at least get mentioned in the chapter on the subject in high school-level American History books).  Craig Becker at NLRB.  Jon Huntsman as Ambassador to China.  George Mitchell as Special Envoy.  Susan Rice as UN Ambassador.  Keeping John Beyrle as Ambassador to Russia.  Chai Feldblum at EEOC. Van Jones.  The list goes on.

Sometimes, Obama makes some "meh" nominations.  I understand why he reappointed Bernanke and Gates, but I'm not wild about it.  General McChrystal still needs to answer about the Tillman Cover-Up.  Tim Geithner and Larry Summers. Rahm.

And sometimes he just screws up (I'm looking at you, Judd Gregg).

But I gotta tell you: I think nominating Pam Karlan to the United States Supreme Court would be one of his most fantastic appointments as President.

Last year, the New York Times called Pam Karlan "an Antonin Scalia for the left."  This was, I think, an unfair and grossly insufficient comparison.  It's comparing Mozart to Solieri.  If you want a good comparison for Pam Karlan, you need to think much bigger than Nino.  Because, based on her body of work and her unparalleled legal acumen, Pam Karlan deserves to be compared to a much nobler and deeper tradition in Supreme Court membership.  She should be compared to Louis Brandeis and Felix Frankfurter.  She should be compared to Abe Fortas and Thurgood Marshall.  She should be compared to Ruth Bader Ginsberg.

And yet, this is the current conventional wisdom:

"If you talk about somebody who's a true liberal, a very strong progressive and a visionary architect of the law and jurisprudence, then you're talking about somebody like Pam Karlan at Stanford.  And nobody is seriously talking about Pam Karlan."

  ~Tom Goldstein, Supreme Court attorney at Akin Gump Strauss Hauer & Feld in DC and director of SCOTUSBlog (link)

"Karlan, for better or worse, is too liberal to be confirmed, in my opinion."

  ~Jeffrey Toobin (link)

"Pamela Karlan, a well-respected liberal scholar, could also be a controversial, bold and challenging nominee for Democrats."

  ~Michael Scherer, TIME (link)

So what makes Karlan "too liberal to be confirmed"?  How come "nobody is seriously talking about Pam Karlan"?  Why, just look at her record!

One of the most thorough blawg smackdowns ever written happened to be Karlan's first-ever blog post, back in 2008.  Someone insulted her on the web, she replied in kind, and it's rather devastatingly well done.  (As both a blogger and a Dune fan I feel compelled to say: "she knows our ways as if born to them!")  Oh, and the topic of the discussion? Her work as a civil rights advocate protecting the voting rights of blacks in Alabama.  She is widely held in high regard for her work in this field:

Karlan may be the best voting rights litigator in the country; she knows the world of Southern black politics like few others. ... Valuable as that is, this is more valuable still: Karlan genuinely loves her clients, and she is zealous about the business of protecting and enforcing their rights.

...

All Americans benefit when Supreme Court Justices are high-caliber intellects with a flair for language, characteristics that Karlan and Kagan share.  My own politics are center-right, but I want good, smart judges and Justices on the left (where Karlan mostly is) and center-left (where Kagan resides) as well as on my piece of the ideological spectrum.

  ~Bill Stuntz, Harvard Law (link)

"No one I know matches her brains, passion, and persuasiveness."

  ~Rick Hasen, election law expert and Distinguished Professor of Law at Loyola Law School (link)

You remember the landmark civil rights case Lawrence v. Texas that struck down anti-sodomy laws across the country and effectively de-criminalized homosexuality everywhere in the United States?  For that case, Pam Karlan authored an amicus brief on behalf of 18 other Constitutional Law professors urging the Court to rule in Lawrence's favor: Justice Kennedy's majority opinion arguably drew its inspiration for granting an undeclared yet heightened level of scrutiny to laws interfering with individual fundamental rights like intimacy from Karlan and her fellow amici's brief.  (Incidentally, the Lawrence decision struck down a terrible opinion from an earlier case, Bowers v. Hardwick. The lead dissent in that case was signed by Justice Blackmun, who said after retiring from the Court that the dissent was both his favorite opinion he ever issued, and also written primarily by his brilliant clerk, Pam Karlan.)

And it's not like she isn't willing to openly discuss her positions and philosophy.  Karlan's already gone on record supporting much greater discussion of legal issues at confirmation hearings:

"I'd be really disappointed if we end up with a nominee up there who says things like when they ask, 'What do you think about Brown v. Board?' They say, 'I've never discussed that case. ... I've never thought about privacy. I've never thought about separation of powers. I've never thought about the First Amendment.' Who wants to see more of that?"

  ~Pam Karlan, 2009 (link)

A Karlan nomination now would virtually guarantee the most wide-ranging and extensive dialog on matters of constitutional interpretation and construction that the Senate has ever seen, on account of the Aug. 5, 2010 hardback release date for Keeping Faith with the Constitution, a book about constitutional interpretation that directly challenges the strict constructionism and originalism of Justices like Thomas and Scalia, written by Goodwin Liu (newly nominated by President Obama to serve on the Ninth Circuit), Christopher Schroeder (soon to be confirmed as the Assistant Attorney General for the Office of Legal Policy), and Pamela Karlan.  (You can download the book--which has already been made available online--for free at the American Constitution Society's site).  

Her confirmation hearings would naturally become a political flashpoint (whose wouldn't?), but in a grander sense they could represent the point where the liberal legal elite finally mounts an impassioned and vigorous defense of our ideals against the tempting simplicity of contemporary Originalism.  These hearings could become required viewing for first-year law students, and discussed as setting a new standard that can replace the failing and counter-productive "Ginsberg Standard."  We could have the "Karlan Standard": if you want a seat on the Bench, you'd better have at least a book's worth of information about your judicial philosophy ready to discuss. (Hell, we expect our presidential candidates to write books about their governing philosophies, and they only get limited terms, not lifetime appointments!)

[And don't even get me started about her revolutionary concepts about the Eighth Amendment's ban on cruel and unusual punishments!]

She's undeniably erudite, progressive, ingenious, young, passionate, well respected, and more than meritorious enough to deserve this seat.  Just for sheer ability, she should get the appointment, and should receive substantial bipartisan support.  And I would be willing to go door-to-door trying to get people to be as enthusiastic about this candidacy as we were about Obama's--she's worth that level of effort.

"I've been saying for some time now that I believe Pam Karlan is truly in possession of a once-in-a-lifetime legal mind.  Through her work at Stanford's Supreme Court Litigation Clinic, she's had the kind of experience on the defense side that is really lacking at the court.  At 51, she has served as assistant counsel at the NAACP Legal Defense and Educational Fund, authored three leading casebooks on constitutional law, and worked tirelessly to articulate and defend a principled liberal view of the constitution.  I really do believe that nobody else talks like Karlan, thinks like Karlan, or brings the kind of crackling youth and brilliance and intellectual energy I'd frankly pay to see on the left side of the high court."

  ~Dahlia Lithwick, Slate (link)

"A once-in-a-lifetime legal mind" is, I think the evidence demonstrates, a fair description of Prof. Karlan.  She's already made an indelible mark on Supreme Court practice, and will one way or another continue to be a major force in modern jurisprudence.

So given all of these positive qualities and her universally recognized legal genius, why is everyone really so certain that she cannot be confirmed?

I wonder, I wonder... .

Originally posted to JR on Thu Apr 15, 2010 at 05:47 AM PDT.

Poll

Would you ACTIVELY support a Karlan nomination? Calls, letters, demonstrations, etc.?

75%72 votes
11%11 votes
8%8 votes
4%4 votes

| 95 votes | Vote | Results

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