In this diary, I am going to eat a little crow. I said this weekend to someone else that if Warren is considered for the Supreme Court, then that I would eat my shoe. With any luck, I will be asking for soy sauce soon enough.
CNN, via a Quick Hit on Open Left, is reporting that Warren is on the short list of candidates to replace Stevens. LINK
Now, we should take this report with a grain of salt. Afterall, today, Senator Hatch was pushing the improbable candidacy of Hillary Clinton on the Court.
While I hope the rumor pans out to be reality, I would like to point out why this choice excites me. The primary reason is that she represents much of the criteria that is important in Stevens' successor. That's what I want to discus here- why progressives and liberals should have a criteria of what they want rather than simply a list of names.
People, when discussing the replacement, often tend to think of this in terms of names. What I want is a criteria of traits that I think will help move the court from far right under Roberts to center left over time. My thesis is straight forward: If you want a moderate to left of center Court, then you must consider the balancing issue by choosing a strong enough progressive voice to lead on the court to address the imbalance caused by the conservative bloc.
A centrist will not achieve this goal due to the concept that one might label as Overton's Window. If the "acceptable views" on the court are moderate to far right, then you are going to only have decisions that lean right.
That criteria can be found in Warren.
First, she's an progressive economic populist. An economic progressive populist voice is not present on the Court. Indeed, when people discuss the Court, and, whether a justice is liberal or not, they are quite often discussing social issues such as civil liberties rather than the Court's rulings on economic policies. And yet, from securities laws to campaign finance to tax laws to net neutrality, the Court plays a vital rule in our daily economic lives. It is my view that the court is mostly packed with right of center to far right economic views. This affects the rulings that we see out of the Court. Thus, we need someone on the Court who will address this imbalance of wide ranging economic voices. For example, outside of her voice on consumer protection, she's a leading expert on bankruptcy law.
Second, someone, rightly asked whether Warren would become a force for social justice on issues like civil liberties, civil rights, and many of the other issues that are considered the hot button issues. I will admit I don't know enough about her views in this area. I think it would be important to know how she would balance the Court in this way.
Third, the key element missing from some of the discussion is who would eventually provide leadership from the left on the Court? Warren, with the her way of making the difficult, plain, certainly exemplifies someone who could take on any Senators trying to destroy her nomination, and justices, seeking to obscure their right wing ideological arguments under the guise of Constitutional Law. If not her, we someone like her on the Court to address this issue.
Thus, I hope progressives and liberals will use the three part criteria to balance the court on economic issues, social issues and leadership. Ultimately, we don't have the final say about who the president picks. What would be useful is a metric by which we are gauging his picks. I think these three elements are the most crucial.