The New Obama Court

US Supreme Court Associate Justice Ruth Bader Ginsburg has been diagnosed with pancreatic cancer. In spite of the tremendous gains in cancer research and treatment in the past few decades, pancreatic cancer remains one of the remaining “uh oh, you’re in extremely deep trouble now” diagnoses. The five year survival rate is less than five percent. Justice Ginsburg will need to step down from the court, and probably sooner than later.

Coming into office, President Obama expected that he would likely be nominating two new Justices, to replace John Paul Stevens (who, nominated by President Ford, is the longest serving justice and the oldest at 88 years old) and David Souter, who has made no secret of his dislike of all things Washington and desire to return home to New Hampshire. Souter may well retire before Stevens, but now Justice Ginsburg is headed to the front of the line.

So who’s next? No matter who’s nominated, the ideological balance of the court isn’t going to change right away: the three probable outgoing Justices all tilt to varying degrees to the left. In terms of new nominees, the smart money in Washington is being wagered on two eminently qualified women currently on the Federal Appeals level: Sonia Sotomayor, who serves on the Federal Court of Appeals for the Second Circuit, and Diane Wood, who serves on the Seventh Circuit. Judge Sotomayor is Hispanic, which would be a plus, and Judge Wood was a professor at the University of Chicago Law School alongside President Obama. Familiarity helps.

While both women are presumptive choices, there are other, less obvious picks to consider. I’d toss two names into the ring of possibility: Governor Deval Patrick of Massachusetts and Delegate Eleanor Holmes Norton of the District of Columbia. While we haven’t seen nominees for the Court lacking judicial experience in the recent past, there’s a long history of such people having distinguished, and indeed pivotal roles on the Court. Since 1900, none of the following Justices had ever served as a judge before their nominations: William Rehnquist, Byron White, Earl Warren, Robert Jackson, William Douglas, Felix Frankfurter and Louis Brandeis. So, both Patrick and Norton would be in august company. Both are African American, but that’s hardly the most important element for each one’s potential candidacy. Governor Patrick, like President Obama, is a Chicago native and also a graduate of Harvard Law School. He served as the Assistant Attorney General for Civil Rights in the Janet Reno-led Justice Department in the Clinton Administration. It’s not entirely outrageous to hope that Justice Patrick could become a latter day Thurgood Marshall.

Way back in the early days of the Clinton Administration, scuttlebutt around Washington whispered the name of Eleanor Holmes Norton as a possible Supreme Court pick. Delegate Norton (the District of Columbia doesn’t have an actual Congressperson, because it’s not a state) has been representing the Disrict of Columbia in Congress since 1990. She’s a Yale College and Law School grad. In 1964, she travelled to Mississippi as part of Freedom Summer, and worked alongside some of the great civil rights pioneers: Medgar Evers, John Lewis, James Forman and of course Dr. Martin Luther King, Jr. In the 1970's, Ms. Norton served in the Carter Administration as the first female head of the US Equal Employment Opportunity Commission.

My point is that with the very real likelihood of nominating replacements to a third of the Supreme Court in his first term, President Obama can remold the Court's liberal base for the next generation. Although unlikely, if the gods smile on him and either swing vote Anthony Kennedy or Scalia lapdog Clarence Thomas steps down, we would see a vastly reshaped court. I suppose it's too much to hope that Antonin Scalia is going anywhere. Besides, conservatives need to have their own firm champion on the Court, so assume Scalia stays. That said, winning an election carries consequences. I've always felt that one of the most important of these is a president's ability to shape the judiciary. It's a tantalizing and satisfying wish of mine that Barack Obama, the first African American editor of the Harvard Law Review and a distinguished Constitutional Law Professor at the University of Chicago, will have a substantive and long-term impact on the Supreme Court, and in so doing make a real difference in the lives of Americans for decades to come, even after his term in office has long expired.