At Friday's press conference, President Obama interrupted Robert Gibbs to make a brief statement regarding David Souter's retirement.
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book.
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I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
Now, I'm no lawyer or nothin', but I'm going to put in my vote for someone who is: Glenn Greenwald.
Before I get shouted down for thinking a little outside the box, let me qualify that this is somewhat of a tongue-in-cheek endorsement. Actually, more than anything else this is a piece that simply outlines my admiration for Greenwald's writing -- an appreciation for his thorough analysis of legal issues and the political discussion surrounding those issues. Greenwald himself would probably laugh at the idea, and I doubt that President Obama would even consider him for the position, much less nominate him, anyway. It should also be noted that there are plenty of other qualified candidates under consideration who would make exceptional Supreme Court justices, and this diary is not intended to discredit any of their qualifications or abilities to act as federal judges.
But if you'll indulge me, allow me to present my case to the jury, if you will. In the spirit of a lengthy Greenwald post, enjoy a lengthy (but hopefully well-reasoned) explanation.
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Why Greenwald, you ask? For a few reasons.
First, he meets (obliterates, really) the first criterion of having a sharp and independent mind. It is well-documented that Greenwald has been relentless in his criticisms of the Bush Administration's policies on torture, State Secrets, warrantless wiretapping, and detention. He also has no qualms about criticizing both Democrats and Republicans who were complicit in allowing these policies to be implemented (see a sample of his writings over the years on the subject here, here, here, and here).
Second, it is clear from reading Greenwald's blog that he is an independent thinker with a deep understanding of constitutional law. He has written extensively about the implications of previous federal court decisions (see Hamdan v. Rumsfeld, the Ali Al-Marri and Jose Padilla cases, and Boumediene v. Bush), and his arguments are well-researched and based on his experience as a civil rights litigator. His writing reveals that he does not allow political bias to color his reasoning -- an important asset for any impartial judge of the law.
Third, I'd like to address a few concerns that some in the progressive sphere might have about Greenwald as a SCOTUS justice.
- "He's been too critical of President Obama."
A nominee for SCOTUS is under no obligation whatsoever to agree with the President on everything, and Obama, for his part, has said numerous times that he welcomes criticism. Greenwald has, in my view, correctly criticized Obama for reversing his position on FISA during the campaign, and also for continuing (at least for the moment) the Bush Administration's policy on State Secrets, which permits the "dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security." Greenwald has examined these issues with a keen, critical eye and deserves real credit for speaking truth to power.
For what it's worth, Greenwald has also praised Obama for his decision to release the now-infamous Bush torture memos (here and here), as well as his decision to nominate Dawn Johnsen to be the head of the Office of Legal Council.
- "He's an egghead.
I, for one, would be proud to have an "egghead" replace Souter. Or rather, I would be proud to have a legal scholar with a strong intellect and who understands all of the ins and outs of federal law and its applicability as a SCOTUS justice. Someone who has great knowledge of the law is exactly what I think most people would want in a judge, just like most people expect that a brain surgeon would have great knowledge of medicine and its practice. Personally, I don't see how a judge who understands the law, the U.S. Constitution, and the Bill of Rights could be considered a qualified SCOTUS justice WITHOUT being an egghead (Clarence Thomas notwithstanding).
- "He isn't an 'old-school, ideology-driven, politically-savvy liberal.'"
Appointing someone simply for being "ideology-driven" and "politically-savvy," even someone with liberal values, would be an unwise decision, and would potentially corrupt the federal judicial system. As dhonig astutely pointed out, "Bad precedent for 'good' political purposes today can be used to support 'bad' political purposes tomorrow." George Bush once nominated Harriet Miers to replace Sandra Day O'Connor on the Supreme Court -- but once it was revealed that she was an unqualified hack, nominated solely because of her loyalty to Bush, she withdrew before the Senate even had a chance to vote on her. Appointing ideologues who fit a certain political litmus test was a hallmark of George Bush's tenure, and President Obama has already made very clear that he has no interest in continuing that.
Besides, I'm not exactly sure how being "politically-savvy," at least in the way I understand it, is of much help to a SCOTUS justice when he or she is seated. It isn't the job of Supreme Court nominees to help enact the President's agenda -- that's the job of Congress. SCOTUS justices are also (I would presume) barred from giving and accepting donations to individuals or organizations involved in Supreme Court cases, lest there be serious charges of conflicts of interest and corruption. The only time when a SCOTUS justice has to employ any political savvy is before they're seated -- specifically, when the nominee answers questions from the Senate during the confirmation hearings. But even then, all one has to do to understand a nominee's positions on controversial legal issues is to read the documents from his or her prior rulings and casework.
- "He's a white male. We've got plenty of those in the SCOTUS."
Sorry, but Greenwald does not have to apologize for the color of his skin or for being born a dude. Nor do any of the other potential SCOTUS nominees who happen to be white, male, or both. Still, if diversity is one of your primary interests, then you'll be pleased to know that Greenwald has been openly gay for more than 20 years.
- "He's too young."
Hey, other SCOTUS justices have been younger. Ever hear of Joseph Story?
- "His blog posts are too long! I'm busy!"
Well, a lot of Supreme Court documents are quite long. In that sense, I think Greenwald's lengthy posts make him well-suited to what he'd be doing as a SCOTUS justice.
- "He has never been a judge."
You're right. You've got me there. If President Obama is looking for someone with experience as a judge on his or her resume, then obviously Greenwald is out of the running.
But as I've stated many times above, Greenwald has already shown a great intellect in discussing political and legal matters which could potentially arise in SCOTUS case. Plus, let's be honest here: It's not like prior experience as a judge is a natural prerequisite for making good decisions. There are SCOTUS justices today who, along with their prior experience as federal court judges, have used and continue to use ignorant arguments to support their arch-conservative beliefs (See: Scalia, Antonin).
- "He's not progressive enough."
In the preface of his first book How Would A Patriot Act?, Greenwald explained that he once held some views that would be considered "conservative," and others "liberal," but he has steadfastly rejected applying the traditional labels of the political spectrum to himself. He has also frequently criticized the establishment media for being overly sympathetic to Republicans and for dishonestly framing the anti-torture movement as a left-wing "fringe."
I suspect that Greenwald would scoff at the notion that his political positions are somehow ultra-liberal, even if the media characterizes them as such. But more importantly, I don't see the evidence for the claim that he does not share what we in the blogosphere would consider "progressive" values, given his bluntly honest positions against the extremist policies of the Bush Administration. Here are some of Greenwald's statements and positions on a list of issues on which he could potentially be asked to rule in court (emphasis mine):
Torture: Strongly opposes the torture techniques outlines in the Bush torture memos, strongly supports prosecutions for those who authorized torture (see links above).
Warrantless wiretapping: "This is not about eavesdropping. This is about whether we are a nation of laws ... The heart of the matter is that the President broke the law, repeatedly and deliberately, no matter what his rationale for doing so was ... The National Security Agency eavesdropping scandal is not an isolated act of lawbreaking. It is an outgrowth of an ideology of lawlessness that has been adopted by the Bush administration as its governing doctrine." -- Greenwald, July 12, 2008.
Marijuana policy: Greenwald recently completed a report for the Cato Institute on the success of marijuana decriminalization in Portugal.
"There is clearly a growing recognition around the world and even in the U.S. that, strictly on empirical grounds, criminalization approaches to drug usage and, especially, the "War on Drugs," are abject failures, because they worsen the exact problems they are ostensibly intended to address." -- Greenwald, March 14, 2009
Gay civil rights: Greenwald opposed Proposition 8 and supports repealing DOMA. He also strongly supports a bill that would "grant gay American citizens the right to have a permanent visa issued to their foreign national spouses," a right that is prohibited by DOMA.
Affirmative Action: Greenwald has not written much about Affirmative Action in his blog, though he has criticized conservative opposition to it.
"[Conservative magazine] National Review ... hates 'handouts,' believes strongly in the glorious virtues of self-sufficiency and pulling oneself up by one's bootstraps (and, apparently, by one's unsevered umbilical cords); demands meritocratic policies; and is filled with spine-stiffening courage and toughness. They're the people who hate affirmative action because of how 'unfair' and 'un-meritocratic' it is, but who thrive on legacy admissions to college and have their moms and dads get them jobs and make their careers." -- Greenwald, October 16, 2007
"[University of Oklahoma Professor David Deming] explained that Sarah Palin compares favorably to Obama because she -- unlike he -- was 'unassisted by affirmative action' and 'is not embarrassed by being an American.' ... The right-wing blogosphere lavished praise on [Deming's] article ... and explained that 'Barack Obama despises America and American values because he has never known or experienced them, as he did not grown up in a normal American culture' ... The need to banish the faction that has been driven by drooling, ugly cretins like these -- the people whose twisted mentality brought us torture and rampant lawlessness and endless authoritarian destruction and who crave still more of all of that (and economic crises always exacerbate hatemongering extremists and render their bile infinitely more dangerous) -- is, by itself, reason enough to care about the outcome." -- Greenwald, September 26, 2008
Of course, the issue that nearly everyone worries about when nominating a SCOTUS justice is abortion. In his blog, Greenwald has not divulged much of his own personal views on reproductive rights, but before the 2008 primaries he did make the following observations (again, emphasis mine):
"Writing at The American Prospect blog, Dana Goldstein criticizes Andrew Sullivan for endorsing Ron Paul as the GOP candidate (Sullivan also endorsed Democrat Barack Obama, his clearly preferred candidate) and specifically objected to Sullivan's praise of Paul on civil libertarian grounds. Goldstein's complaint: Paul's pro-life position means he believes in freedom 'only when it comes to half of the population' and therefore no 'thinking person committed to individual rights' could coherently support him.
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If one accepts Goldstein's premise -- that no decent person would ever support any pro-life politician regardless of other concerns -- it is difficult to understand how her position is reconciled with support for Democrats generally, given that they have installed in one of their two most powerful positions -- Senate Majority Leader -- a fairly dogmatic pro-life politician in Harry Reid.
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If the standard is (as Goldstein suggests) that, regardless of any other considerations, anyone who is pro-life ought to be removed from good company -- along with those who support any such individuals -- that's a perfectly principled position, but it ought not be applied selectively. It would mean, by definition, that none of the Democratic Senators (who unanimously chose to elect as their Leader one of the very few pro-life Senators in their midst) can be said genuinely to support individual rights, and that doesn't appear to be a conclusion which many people actually embrace." -- Greenwald, December 20, 2007
While these statements do not speak to the legal ramifications of Roe v. Wade nor his position on it, Greenwald does make a good point that a progressive voter should not oppose one candidate (in this case, Ron Paul) for the sole reason he's anti-choice, but then at the same time support another candidate from the opposite party (Harry Reid) when he's taken the exact same view on abortion. It also bears mentioning that Greenwald did not support Paul's candidacy, nor did he ever defend Paul's actual position on abortion itself -- he simply pointed out the fallacy in applying abortion as a sole litmus test for supporting or rejecting a political candidate.
I will not purport to know what Greenwald's views on women's reproductive rights are. In fact, one thing of which I am certain is that when the Senate grills the SCOTUS nominee on his or views on abortion, the nominee -- no matter who it is -- will duck and dodge the question to avoid answering it at all costs. However, given his objective analysis of legal and political issues in his writing, I happen to think that Greenwald would not use his own personal beliefs to cloud his judgment. He does not seem to agree with the idea of letting a simple abortion litmus test dictate how one votes for a political candidate, so I find it hard to believe that he would use a simple abortion litmus test to dictate how he would vote on any potential abortion laws. Rather, I think he would acknowledge that, whatever one believes about reproductive rights, current federal law states that abortion is legal, and that if the SCOTUS were to overturn Roe v. Wade, it would take a fundamental, seismic shift in our nation's laws predicated on strong evidence that abortion were somehow unconstitutional.
By the way, for those of you who might still be worried about Roe v. Wade being overturned in the future, let me point out that while I understand the concern and that I, too, would dread that outcome, it's worth mentioning that arguably the most right-wing government of our lifetimes could not get Roe v. Wade overturned during the past eight years. That, of course, does not mean that progressive voters should be complacent about it -- it's just merely to state that I hardly think a Greenwald nomination would ensure that it would happen.
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I also think there's a perfectly legitimate argument that Greenwald would lose his effectiveness to speak truth to power if he were to become a SCOTUS justice, instead of an independent journalist and legal scholar. I think that's most likely true. His blog allows him the freedom to examine complex and controversial political issues, and then post his analysis for a wide audience on a near-daily basis -- which then allows amateur bloggers like me to read, re-read, analyze, and re-analyze his arguments within a matter of minutes.
But regardless of whether or not he served as a voice of reason in the blogosphere or in federal court, I believe Greenwald would still fit the most important criteria for Obama's SCOTUS nominee: To be a person who is "dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role" -- to be somebody who share's the President's respect "for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time." After reading his work, and despite the fact that I personally don't agree with everything he writes (such as some of his points in this post), I can conclude confidently that Greenwald cherishes these constitutional values to their core, as befits an honest intellectual and rational scholar of the law.
Finally, I encourage any and all of you to read and consider other diaries profiling the qualifications and experience (both positive and negative) of other potential SCOTUS nominees (such as this one on Kathleen Sullivan and this one on Sonia Sotomayor). I will do the same, and if you disagree with the premise of this diary, no problem. Again, it was primarily a simple way of showing respect for Greenwald's writing.
Thanks for reading this far! And if Glenn himself is reading this, feel free to shoot the idea down right on the spot -- if nothing else, you've got yourself another dedicated reader.
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Cross-posted at Talking Points Memo