Two recent Times stories provided refreshingly balancedpreviews of Barack Obama'snext Supreme Court pick - and it's no coincidence that slanted legal reporter Neil Lewis was involved in neither of them.
In "Souter's Exit Opens Door for a More Influential Justice ," Adam Liptak's Friday examination of potential replacements for the retiring Justice Souter, Liptak forthrightly admitted the obvious - that Obama would nominate a liberal replacement for the liberal Souter,perhaps one with a more outsized personality, to match conservative Justice Antonin Scalia.
In replacing Justice Souter, President Obama will almost surely pick another liberal. But Mr. Obama may also consider Justice Souter as a kind of counterexample and choose a bigger and bolder figure, one who sets agendas, forges consensus and has a long-term vision about how to shape the law.
Justice Souter filled the seat left vacant by Justice William J. Brennan, a liberal lion who was also a master tactician. The first rule of the Supreme Court, Justice Brennan would say, holding up his open hand, is to get to five - meaning persuading five of the nine justices. Justice Brennan also took the long view, planting seeds in bland footnotes in the hope they would take root in other cases years later.
Other justices have gained influence through intellectual combat and commitment to a judicial philosophy. Justice Antonin Scalia's views about the importance of adhering to the text and original meaning of the Constitution and statutes, for instance, has come to dominate conservative judicial thinking.
"The replacement to Souter is not going to make an ideological majority for progressives," said Abner J. Mikva, a former federal judge who taught with Mr. Obama at the University of Chicago. "The new justice has got to be someone who can persuade Kennedy and maybe even Alito." Justice Anthony M. Kennedy is the court's swing justice; Justice Samuel A. Alito Jr., a conservative, is its newest member.
Mr. Mikva said the other members of the court's liberal wing - it includes Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens - had not been up to the task. "Justice Breyer and Justice Ginsburg are good justices," he said, "but they can't lead. They can't bring people with them."
As a freshman senator, Barack Obama accused one of President George W. Bush's judicial nominees of changing her approach from case to case to ensure outcomes favorable to powerful parties, like property owners. That one-sided record, he said, showed a mission of "not blind justice, but political activism."
But in another floor speech soon afterward, Mr. Obama seemed to emphasize a different ideal than blind justice. Judges should "recognize who the weak are and who the strong are in our society," he said, because hard cases will turn on factors like "the depth and breadth of one's empathy."