In a few days time, President Barack Obama will make history—again. He will nominate a Supreme Court justice. There have only been 110 men and women to hold a seat on the high court in our nation’s history. I have more pairs of shoes than that, and some of them—like Supreme Court justices—I wish had never been picked.
Take for instance those pretty red leather sandals with gold bands on them. They shredded my feet the first and only time I ever put them on. And then there were the pointed toed stilettos I bought for a gala. My arches hurt so badly that midway through the reception I took them off and headed for the door before the dinner bell rang. You get the picture.
After Justice David Souter announced his retirement last week, I got to thinking about my own hit-and-miss shoe buying record. History will reward those justices, like Souter, who pushed us forward on racial justice, freedom of speech, and privacy issues. Those who showed themselves as somewhat less than studied ideologues will go down in flames as footnotes that deserve to be kicked around by law school students.
Shamefully, there have been only two women, Sandra Day O'Connor and Ruth Bader Ginsburg. O’Connor has since retired but, despite her battle with pancreatic cancer, Ginsburg remains. In a world where women outnumber men among college and law graduates, I find that stupefying. Likewise, there have only been two African Americans on the court. Thurgood Marshall left this earth far too soon and, well, Clarence Thomas feels worse than a bad pair of stilettos and has the mental heft of a pair of beach flip flops.
A former Constitutional Law professor, it’s a good thing that President Obama is a lot smarter than me. But in case he finds himself having an off day when he makes the pick, I have a few recommendations for his consideration.
It would be nice if the Court reflected the richness of our diversity. But for the record, I am not eager for a black man or a woman. In fact, I don’t think race or gender should be a factor in the president’s decision. Picking a justice is not an opportunity for political payback-- no matter how many letters the White House receives trumpeting the value of a Hispanic jurist.
The nominee should be a better than qualified, brilliant legalist. As one New York Times columnist said, "Let’s stick to the true issues. If some of the senators don’t like Obama’s choice because he or she is in favor of abortion rights or affirmative action, they should admit it and not try to pretend their real objection is that he or she smoked marijuana in the twelfth grade."
Which takes me to my next point: Forget trying to find a "safe" pick that will please both sides of the aisle. Not happening. Not in this political climate. Remember the Stimulus bill? The nominee, no matter how distinguished, will be picked apart like last night’s pot roast. I am willing to wager that nearly every Republican will then vote against them no matter who Obama chooses. Alabama Senator Jeff Sessions will almost certainly lead the way. Pay him no mind. He thought the Ku Klux Klan was cool until he found out they smoked pot and thought it was okay to call one of his Black staffers "boy".
What should the president worry about? Given the previous administration’s record on human rights and privacy, I want a jurist who is committed to upholding the Constitution. I want a staunch defender of privacy rights who is willing and able to interpret the law and not just parrot extremists from the left or the right. That person should find and rule Guantanamo Bay an abomination. If they so much as question the appropriateness of Miranda or think for one moment that the Foreign Intelligence Surveillance Act (FISA) was okay, they should be disqualified. The court is no place for activist judges who want to re-write the law no more than it is a place for "naturalists" who would sooner see us return to Jim Crow than actually find merit in our nation’s laws on voting and employment rights. The nominee should have a demonstrated ability to adjudicate cases that have come before them with a sense of fairness tempered by the constrictions of law.
And finally, take former President Bush’s lead and pick a young jurist—someone who will outlive your presidency and the next. There’s something to be said about picking a bad pair of shoes. You can always return them to the customer service counter. Unlike Supreme Court justices, who get a lifetime appointment, you don’t have to wear them.
Cross posted at www.goldietaylor.wordpress.com. To be published on EbonyJet.com.