‘Will Obama’s First Supreme Court Pick Be From Harvard Law?’
by Aaron Goldstein (5/17/09)
I don’t think it will come as any surprise that President Obama will pick a liberal to replace David Souter on the Supreme Court.
The question isn’t what kind of justice will Obama appoint but rather who and from where. As such I believe the 44th President’s first pick for the nation’s highest court will be found in the moot courts of Harvard Law School. After all, Obama’s only executive experience prior to taking over the reins of the White House was as the editor of the Harvard Law Review nearly twenty years ago.
Given the difficulty Obama had in filling several of his cabinet posts he might be more comfortable selecting someone from familiar surroundings and surely Harvard Law isn’t an unknown quantity to him. An editorial in the Harvard Law Record said it all, “Obama’s gain is Harvard’s Drain. Exodus to D.C. threatens Cambridge quality.” ( http://dyn.politico.com/printstory.cfm?uuid=072A8370-18FE-70B2-A80EBEBA40136625 )
Then again President Obama did go to Trinity United Church for nearly twenty years before claiming The Reverend Jeremiah Wright wasn’t the man he knew. But assuming no one in the confines of Austin Hall believes the federal government concocted the AIDS virus in order to spread it into the African-American community here are five current and former members of the Harvard Law faculty who could find themselves the next justice on the U.S. Supreme Court.
Laurence Tribe
President Obama was a student of Tribe’s at Harvard Law. Tribe himself has described Obama as “the best student I ever had.” ( http://www.cmonitor.com/apps/pbcs.dll/article?AID=/20071114/NEWS01/711140429/1217/NEWS98 ) Of course, if a law professor has ambitions to be on the Supreme Court and a former student of his should happen to have a chance to become President of the United States that law professor will speak kindly of his former student.
Tribe has argued numerous cases before the Supreme Court including Bush vs. Gore. That might mollify some liberals who might be disappointed if Tribe is picked over a woman, a Hispanic or both. Of course, conservatives aren’t crazy about Tribe for his testimony in the Senate Judiciary Committee against Robert Bork in 1987. But there are fewer conservatives in the Senate for Tribe to contend with these days.
Controversy did come Tribe’s way in 2004. In an article written by Joseph Bottum in The Weekly Standard, Bottum suggested plagiarism was at work when it became evident that passages in Tribe’s 1985 book God Save This Honorable Court were remarkably similar to a book written by University of Virginia political scientist Henry J. Abraham in 1974 titled Justices and Presidents.
( http://www.weeklystandard.com/Content/Public/Articles/000/000/004/674eijco.asp?pg=2 )In fairness to Tribe, he did admit to not properly crediting Abraham. Some months later then Harvard University President Lawrence Summers (appointed by Obama to lead the National Economic Council) and then Harvard Law School Dean Elena Kagan (more on her later) said that Tribe had committed a breach but that breach was inadvertent rather than intentional.
Conservative lawmakers and judicial groups would surely bring this episode up if Tribe is appointed. But if plagiarism didn’t stop Obama from naming Joe Biden as his running mate why should it stop him from appointing Tribe to the Supreme Court?
The one thing working against Tribe other than being a Jewish white male is time. Tribe turns 68 in October and Obama might have a preference for someone in a position to serve for 25 to 30 years. If that is the case then sentimentality is out the door.
Alan Dershowitz
Now I know what you might be thinking. Dershowitz is a white Jewish male who is even older than Tribe and ten times more annoying. But if there is ever a time for a President to appoint an annoying justice to the Supreme Court it is when his approval rating sits at around 66%.
Yes, Dershowitz will annoy conservatives. But former President Jimmy Carter isn’t exactly a big fan of Dershowitz either. Nor has Dershowitz endeared himself to acolytes of Noam Chomsky. If Obama picks Dershowitz no one could accuse the President of being boring. Dershowitz’s confirmation hearings would be must see TV.
A Dershowitz appointment would be politically clever for Obama. There exists a strong perception that Obama is less friendly towards Israel than President Bush. But if Obama were to appoint the vocally pro-Israel Dershowitz to the bench then the President can say, “See, I welcome pro-Israel views.” By appointing Dershowitz, Obama simultaneously flexs his pro-Israel street credibility while at the same would effectively neutralizing Dershowitz as Supreme Court justices generally don’t criticize sitting Presidents. If Dershowitz is adjudicating cases he won’t be writing articles critical of President Obama such as the one that appeared earlier this month in The New York Post which criticized the Obama Administration for linking the disarmament of Iran with Palestinian statehood. ( http://www.nypost.com/seven/05092009/postopinion/opedcolumnists/dont_blame_israel_168418.htm?page=2 )
Of course, Dershowitz might be too annoying even for Obama. When it was suggested that Massachusetts Governor Deval Patrick (also a Harvard Law graduate) could be on the short list Dershowitz did not hold back. He described Patrick as a “mediocre governor, mediocre lawyer” and that his ascension to the highest court in the land would be “a crony appointment.” Phil Johnston, the former chairman of the Massachusetts Democratic Party, held back even less. “It would serve America’s best interest if Alan Dershowitz would stay quiet once in a while,” said Johnston. ( http://news.bostonherald.com/news/politics/view/2009_05_02_Will_Deval_Patrick_chase_the_robe_:_Governor_rumored_for_David_Souter_seat/ )
Charles Ogletree
I suppose I’m going out on a limb here. But I think Ogletree has a chance. Ogletree not only taught Barack Obama at Harvard Law but also taught Michelle Obama when she was then known as Michelle Robinson. In fact, Ogletree met the future First Lady before he met the future President.
Students at the University of California, Merced enlisted the help of Ogletree (who is from Merced) to get the First Lady to speak at their commencement on May 16, 2009.
( http://silverscorpio.com/wooed-michelle-obama-to-address-uc-merced/ )Like nearly every President before him, President Obama listens very closely to his First Lady and no doubt she would put in a good word for Ogletree if he wanted a Supreme Court appointment.
If there is anger amongst liberal activists if a woman or a Hispanic or both isn’t appointed the selection of a liberal African-American to the court could mollify tempers especially someone like Ogletree who has called for reparations for slavery.
However, Ogletree (like Tribe) has had problems concerning plagiarism for which he blamed two of his assistants. ( http://www.thecrimson.com/article.aspx?ref=503341 )
But again Ogletree could fall under the Joe Biden Rule.Elena Kagan
But if President Obama absolutely, positively must appoint a woman to the bench then his best bet is Elena Kagan. Until recently she had been the Dean of the Harvard Law School. But as of last March, Kagan is now the Solicitor General of the United States. Simply put when the U.S. government goes to the highest court the Solicitor General argues the government’s position. Robert H. Jackson and Thurgood Marshall served as Solicitor General before they were appointed to the Supreme Court. If Robert Bork’s nomination hadn’t been defeated in the Senate he too would have been part of that select company. The Senate has already confirmed Kagan for one sensitive position and there is every reason to believe she would be confirmed for the Supreme Court.
It is worth noting that if there is any Supreme Court pick that might please conservatives it would be Kagan. Her tenure as Dean at Harvard Law was noted for her openness to opposing points of view (read conservative.) When Obama appointed Kagan as Solicitor General The Washington Post made a point of mentioning that Kagan received a long standing ovation from members of The Federalist Society when she hosted a dinner for them at Harvard Law.
( http://www.washingtonpost.com/wp-dyn/content/article/2009/02/09/AR2009020903303.html )With that said maybe Kagan isn’t the Harvard woman Obama has in mind for the Supreme Court.
Martha Minow
But if empathy is the key for President Obama’s Supreme Court pick then it might be Martha Minow who unlocks the door at 1 First Street NE.
Minow, the daughter of former Federal Communications Commission Chairman Newton Minow, has taught at Harvard Law for nearly thirty years and made an indelible impression on Obama. She advised him on religious issues during his presidential campaign particularly faith based initiatives. ( http://www.nytimes.com/2008/07/02/us/politics/02obama.html )
Rabbi Samuel Gordon, the co-founder of Rabbis for Obama, commented on a dinner he attended in Chicago where Obama spoke and answered questions from the audience. A high school student asked Obama why he turned down Wall Street in favor of public service. Obama replied, “When I was at Harvard Law School I had a teacher who changed my life---Martha Minow.” ( http://www.hartmaninstitute.com/Opinion_C_View_Eng.asp?Article_Id=237 )
Rabbi Gordon happened to be sitting with Minow and her parents during this dinner and needless to say the comment made their night. He went on to note that Newton Minow had taken Obama under his wing after he left Harvard and brought him to Chicago to work for Sidley & Austin, where he was a managing partner. Sidley & Austin is also where the future President would meet his future First Lady.
If Martha Minow (and for that matter her father) changed Barack Obama’s life is it not conceivable he could award this agent of change with a Supreme Court appointment?
At the moment only President Obama knows that answer. Yet somehow I have a feeling Obama will change the complexion of the United States Supreme Court with a crimson hue.
Aaron Goldstein
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