President Obama and his advisers have begun the process of finding a candidate to fill retiring Justice David H. Souter’s seat on the U.S. Supreme Court. According to recent reports, Obama is looking for someone with real-world experience, whose resume differs from the other justices’ appellate court backgrounds. Northeastern law professor Michael Meltsner, who teaches constitutional law and has argued six times before the Supreme Court of the United States, shares his insight into the type of person Obama’s team may be considering.
Overall, what should President Obama be looking for in a new U.S. Supreme Court justice?
It’s easy to tick off the traits—a sense of the institution and knowledge of the law, collegial skills, sound judgment, someone who’ll get confirmed without undue conflict, awareness of how the law in practice affects ordinary people—but difficult to be confident that any nominee combines them in the proper proportion. If the selection isn’t driven by partisan considerations, choosing the best candidate is quite a challenge.
All of the current nine justices were judges prior to their appointment to the Supreme Court. Should President Obama be looking for an academic or an elected official?
Previous judicial experience is overrated as a consideration. The Supreme Court makes policy, though it doesn’t admit it, and breadth of experience and intellect is more important than having served on a lower court.
All but one of the current justices went to Harvard or Yale. Do you think that we need more educational diversity in future appointees?
I graduated from Yale and have taught at Harvard so have great respect for both, but the law school a justice attended years ago has little to do with the ultimate quality of his or her work on the court. Earl Warren attended Berkeley; John Marshall studied at William and Mary and read law privately; Thurgood Marshall went to Howard.
President Obama used to teach constitutional law. Will that impact his decision? How? Why?
I think it must inform his views on the role of the court, but I doubt that he’ll look for a professorial type—though he may choose someone with academic experience. Too much of a tendency for scholastic reasoning in a judge, any judge, is a recipe for mediocrity. Scholastic reasoning turns the subtle into the dull and pedantic. President Obama has said very clearly he doesn’t want that sort of a justice.
How important is it for President Obama to choose a female Supreme Court justice nominee? A minority?
It’s obvious that the court needs to look more like the country whose laws it interprets.
How do you think legal historians will evaluate Justice Souter’s tenure on the Supreme Court?
His reputation will soar because he was independent, thoughtful and humane. This in itself, on a court with several ideologically driven members, is noteworthy. Some of us miss him already.