AROUND D.C.

Wednesday, December 10, 2008 12:50 PM

Progressives See New Chance For SCOTUS Diversity

By MARY GILBERT

Depending on who you talk to, President-elect Barack Obama could have the chance to replace one-third of the current Supreme Court, and liberals are eager to get justices in the mold of Thurgood Marshall and William Brennan. At a panel discussion sponsored by the progressive advocacy group People For the American Way on Tuesday, several legal experts discussed the characteristics they are looking for in an Obama nominee.

PFAW President Kathryn Kolbert opened by expressing her view that Obama's victory represents a Supreme Court "mandate" for the new president. She cited exit polls showing that voters who called future SCOTUS nominees the most important factor in their decision broke for Obama 57 percent to 41 percent, suggesting public sentiment against the judicial model of Samuel Alito and John Roberts, both appointed by President Bush.

John Payton, the director-counsel and president of the NAACP Legal Defense and Educational Fund, advocated for a candidate who has an "aspirational view" of the law and said the courts can and should be used to expand the concept of justice. LDF colleague and pioneering civil rights attorney Julius Chambers said he hopes to see Obama nominate someone with a deep commitment to the belief that every person deserves fair and equal representation. Maryland state senator and American University law professor Jamin Raskin also spoke of "a passion for justice" as a prerequisite for any nominee. And Dahlia Lithwick, senior editor at Slate and author of "Supreme Court Dispatches," said she would like to see a better salesman for the progressive view on the court.

The panelists agreed that diversity is important, but they defined the term broadly. They agreed they would like to see the first gay or lesbian justice, or the first Hispanic, but Raskin pointed out that diversity of experience is equally important. For instance, instead of a corporate lawyer, perhaps a nominee with a background in union law. Or, Payton pointed out, Obama could choose someone who, like himself, went from law school into a career in nonprofits and community organizations. The panelists cautioned against creating a court that looks like the country just for appearance's sake.

All of the speakers agreed that the confirmation process has run off track in recent decades. Lithwick described being "devastated" by the "trivialism" of the Roberts and Alito confirmation hearings. Payton said the country needs leadership from the top on removing partisan politics from the process and urged Obama to take advantage of the "window of optimism" surrounding his historic election to initiate a national dialogue about the kind of judges he thinks should be on the court. The tenor of the debate may be different in two years, he said, suggesting that the sooner one of the nine justices is ready to step down, the better for the Obama team.

President Clinton ran into trouble when he had to replace a justice in the spring of his first year, taking several months and going through many potential nominees before settling on Ruth Bader Ginsburg. His circuitous path is something the Obama team will try to avoid. Meanwhile, the president-elect is reportedly already planning to change the make-up of the nation's lower federal courts, where he has a more immediate opportunity to install jurists to his liking.