Justice David Souter's planned retirement places pressures on the President on all sides. The opposition will demand an "independent" replacement, ironically defining independence as conformity to the opposition's own views. Meanwhile, this article covers the possibilities open to Obama in pursuit of "diversity." It strikes me as a reductio ad absurdam. I don't think that fine distinctions of ethnicity or differences in ability contribute greatly to our collective understanding of what the Constitution means. That doesn't mean that Asians, homosexuals, or handicapped judges should be rejected out of hand. We should presume that people who have been proposed from these categories have genuine credentials apart from their diversity. But we ought to be past the point where a President should want to make history by naming the first justice of any particular kind. I'm not sure if past firsts have made that much of a difference, apart from admitting talent that might have been excluded before. The major civil rights rulings of the Warren Court were made before Thurgood Marshall became the first black justice, for instance.
Meanwhile, independence from partisanship and ideology would be welcome on the court. I would like to see a justice confirmed without any reference to his or her opinion on abortion. There are simply bigger fish to fry. Whether genuinely nonpartisan and nonideological candidates exist at this late point in our history is painfully unclear. Sometimes I wonder whether we wouldn't be better off filling the Court jury style. Find nine literate people, hand them the Constitution, give them a little time to get it down pat, and let them hear cases unencumbered by ideological scholarship or partisan preconceptions. The Constitution is neither liberal nor conservative, and its meaning shouldn't be debated exclusively between those factions. But if we've reached a point where the common people can't be presumed to understand the plain language of the Constitution, then perhaps it's time we had another.