Reason Symposium on Picking a Replacement for Justice Souter:

Reason magazine just put up an on-line symposium asking various legal commentators to answer four questions about the upcoming Supreme Court appointment. The participants are mostly libertarian, but also include a few liberals and conservatives. I was one of those who took part. Here are my answers (limited by the format to three sentences each):

Who should Barack Obama nominate for the Supreme Court and why?

If it were up to me, I would pick my Volokh Conspiracy co-blogger, Georgetown law professor Randy Barnett. Randy is perhaps the leading scholar of the original meaning of the Constitution and a strong advocate for individual rights and limited government. He is also a former prosecutor and would bring a badly needed perspective to the issues addressed by the Court’s extensive criminal law docket, matters that most of the other justices have little experience with.

Who will Obama nominate and why?

It will likely be one of three consensus front-runners: Elena Kagan, Sonia Sotomayor, and Diane Wood. If I had to guess, I would predict Kagan; she is younger than Wood, much more capable than Sotomayor, and would avoid any significant confirmation fight. Kagan would also be a reliable liberal vote, and (based on her record as dean of Harvard Law School) a skillful coalition-builder on the Court.

Obama says that his ideal Supreme Court justice would have the “empathy” to identify with society’s downtrodden. Do you agree with his criteria?

No, the job of a Supreme Court justice is to apply the text and original meaning of the law irrespective of whether he “identifies” with the litigants or not. Even if judges should take policy consequences into account, “empathy” with individual litigants can easily blind them to the broader, systemic effects of their rulings. For example, upholding laws that violate constitutional property rights may help individual “downtrodden” litigants, but often actually hurts the poor overall by curtailing the availability of low-cost housing.

What issue(s) will dominate the court over the next three years and why?

It’s very hard to predict, because much depends on which cases happen to make their way through the lower courts. However, it’s safe to say that the Court will continue to have extensive business law, regulatory, and criminal law dockets. In terms of major constitutional issues, it’s likely that the Obama administration’s revisions of Bush’s War on Terror policies will lead to various legal challenges, some of which will probably get to the Supremes.

Although there’s no chance that Obama (or a Republican president, for that matter) would actually pick him, co-blogger Randy Barnett did get the vote of at least one other symposium participant, Glenn Reynolds of Instapundit fame. Sadly, our endorsement isn’t likely to get Randy appointed to the Court anytime soon.

On a more positive note, I want to take this opportunity to slightly expand on my answer to the “empathy” question. In addition to the fact that it violates judges’ duty to apply the law impartially, using empathy as a criterion for judicial decisionmaking is pernicious because people tend to empathize with those who are most like themselves on dimensions such as race, class, gender, religion, and ideology. Do we really want to encourage judges to engage in such favoritism? Political liberals might want to ponder the fact that even under a Democratic administration, the majority of judicial appointees are likely to be relatively affluent white males. Of course some degree of empathy-based bias is probably inevitable. But we should try to appoint judges who strive to minimize its influence, not those who will give it free rein.

UPDATE: Judging from some of the comments, I wasn’t clear enough in making my point about empathy. Yes, it’s true, Obama won’t deliberately try to appoint judges who empathize most with relatively affluent white males. However, by seeking to appoint judges who empathize with “downtrodden” groups and will make decisions in part on that basis, he will necessarily weaken the judicial norm of impartiality between groups. Judges who empathize with other groups are unlikely to set those sympathies aside if they see Obama appointees giving free rein to their own empathy for the “downtrodden.” Moreover, even under an Obama administration, there will be many relatively affluent white male judges appointed who empathize most with people of similar background; this will happen simply because relatively wealthy whites are still the majority of the legal establishment from which judicial appointees tend to be drawn. These people, too, might vote based on that empathy if the impartiality norm is weakened.

This argument assumes that Obama’s emphasis on “empathy” is not purely rhetorical and that he really will pick judges in large part because of their tendency to use empathy as a decision-making criterion in important cases. Whether he actually does so remains to be seen.

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