As Barack Obama begins his search to replace retiring Supreme Court Justice David Souter, he should keep in mind one simple formula: The next justice should be younger than the president of the United States.
Of course, this is the criterion that dare not speak its name. It would hardly do for the president to be hauled into court in an age-discrimination suit. But shrewd politicians know how to communicate their wishes without actually expressing them. Republicans from Ronald Reagan to George W. Bush made a point of nominating relatively youthful justices to the nation’s highest court. They did so because they knew that presidents come and go, but a Supreme Court justice is in for the long haul.
Obviously the eventual nominee should reflect the president’s values and vision, but as presidents from Harry Truman to Dwight Eisenhower to George H. W. Bush learned, past performance is no guarantee of future results. Truman regretted his appointment of Tom Clark (an attorney general, and father of a future attorney general, Ramsey Clark), who turned out to be quite conservative. Ike was stunned to find out that Earl Warren was a closet liberal. And, of course, the elder Mr. Bush’s choice of Justice Souter has had conservatives gnashing their teeth for nearly 20 years.
If Mr. Obama is determined to make an impact on the court that will linger into the next three or four presidential administrations, he needs to choose wisely, and he needs to choose young. He needs to consider that justices like Chief Justice John Roberts and Associate Justice Samuel Alito are going to be fixtures for at least the next 20 years. And he should reflect on the impact that Justices Antonin Scalia and Clarence Thomas have had since their youthful appointments to the court.
Some pressure groups on the president’s left will demand that Mr. Obama use this opportunity to nominate a candidate based on ethnicity, gender, sexual orientation or some other cultural criterion. If he finds a young, qualified nominee who happens to be a woman, or a Latino, or openly gay, that would be fine. But the emphasis must be on youth, not on some false notion of inclusion for its own sake.
Mr. Obama also should anticipate a confirmation fight. Republicans very likely will pounce on the president’s nominee, if only to make the White House look bad. That means the administration will have to vet potential nominees with more care than it gave some of the president’s original cabinet choices. The president has enough on his hands at the moment. He doesn’t need to get into a bitter, protracted battle over a nominee with a surprise or two on his or her résumé.
Barack Obama has a chance to shape American jurisprudence for the next two or three decades. He needs to find a candidate who will be issuing opinions long after historians begin assessing the Obama years.