Memory of Giants

Last week, in a story written by CNS reporter Lisa Klein, President Obama defended his Supreme Court nominee as eminently qualified and lamented his inability to get a hearing in the Senate. But there is at least one common qualification where Obama's candidate falls short.

Out of the eight judges now sitting on the U.S. Supreme Court, fully seven are from the Northeast. Obama's nominee, Merrick Garland, would make that eight out of nine.

When you follow the train line along the Northeast Corridor from Washington, D.C., to Boston, it goes through the geographic base for every one of the high court judges except one, Anthony Kennedy, who came out of California and the Ninth Circuit.

"For most of the existence of the Court, geographic diversity was a key concern of presidents in choosing justices to appoint," notes Wikipedia, citing "Storm center: the Supreme Court in American politics" by David O'Brien.

So what happened to that principle?

The Northeast, and in particular the D.C. Circuit, with a docket heavy on regulatory disputes, does not reflect the great diversity of the federal courts in the United States.

Already on the high court and hailing from the D.C. Circuit are Roberts, Thomas and Bader Ginsburg. Kagan clerked at the D.C. Circuit before working as solicitor general in Washington. Alito came out of Third Circuit in Philadelphia. Breyer came out of the First Circuit in Boston. Sotomayor came out of the Second Circuit in New York.

If his nomination were successful, Obama would exacerbate the current geographic bias, further entrenching the concentration of power in the Northeast.

And in no other way can Obama's pick be said to add diversity to the high court bench, with another white male from Washington. In addition, he is naming a judge widely reputed as a cautious centrist who sticks tightly to a literal interpretation of statutes and precedent, and tends to side with the government.

When I looked through the descriptions of Garland in the Los Angeles Times and The New York Times as a judge with a "cautious, centrist record," a "limited conception of his role," and a "tendency to defer to regulatory agencies and the executive," I thought, that is not what the court needs.

It needs a Marshall, a Brandeis, a Holmes or a Cardozo. It needs a Douglas, a Black, a Brennan or a Traynor, the California legal giant who should have been on the high court. The court needs a justice who ranks with the giants of yore.

It's been a long time since there has been a great on that bench, a judge willing to deploy the vast power and sweep of the law, a judge who reasons and writes in broad strokes with incision and strength.

Among the final interpreters of our fundamental law, the keepers of the American flame, our nation does not need a bureaucrat who protects the bureaucrats. We need a swashbuckler.

Now, it seems pretty clear that despite the immense amount of hot air and punditry blowing around the appointment, the unfortunate nominee has about a snow ball's chance in the furnaces of the underworld of being approved by the Senate.

But at some point in the next year and a half, a justice is likely to be enrobed. So who might fit the role as it has been carved out over two centuries?

From Chicago, Richard Posner in the Seventh Circuit would fill the role of a justice willing to exercise the great power and responsibility of bearing up the fundamental law of our nation, a powerful intellect, a judge of greatly varied interest and gregarious wit.

His many opinions would provide fodder for criticism from preening politicians, no doubt. But why proceed on eggshells when making an appointment that will shape the law and fabric of our nation for many years to come?

And further out west, indeed in all regions of the nation, there are able and courageous appellate and district court judges who should be in consideration.

For example, when this publication expanded to include the opinions from judges in the Northern District, the move greatly expanded the variety and depth of opinions we reviewed in the Almanac.

In the Northern District, our correspondent, Bill Dotinga, covered the Oracle-Google litigation with Judge William Alsup presiding. Reporting daily, Dotinga saw a firm hand at the tiller and a strong intellect perfectly willing to challenge over-reach in the argument by David Boies, one of the more heralded lawyers of recent times.

"Hysterically funny, no bullshit, he is exactly what I would want a judge to be if I was before him," said Dotinga. Alsup's opinions are models of clarity and power in reasoning, and his work rate is extraordinary. Our own CNS database includes roughly 250 articles based on his rulings.

But there are many excellent judges on the Ninth Circuit and in the federal district courts of California who write well-reasoned and powerful opinions that affect fundamental issues of our day, and who do not defer to the concentration of power in the federal government and its agencies.

So why not pick a judge from out of the West, a judge with intellect, strength, courage and wisdom, who could be one of the giants on the highest court in the land?

The decision and the great power to name the ninth justice, who will affect the course of the law in America for years to come, will almost certainly be left to the next president. And maybe it's better that way.

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