Given that President Obama is not going to nominate to the Supreme Court an originalist (a Justice who seeks to determine the original intent of those who wrote the Constitution) what's the best those who don't want another activist (a Justice who legislates from the bench) on the Court can hope for?
The New Ledger nominates Cass Sunstein:
I start with the obvious: Cass Sunstein would not be my pick for the Supreme Court were I President of the United States, simply because he and I do not share the same judicial philosophy. I want my judges and Justices to adhere to original public meaning jurisprudence, and Cass Sunstein is not an originalist. As such, my view is that his approach to interpreting the Constitution is not the best approach. (Doubtless, he would say the same thing about my approach.)
But I will follow up with something just as obvious: Cass Sunstein is plenty bright and plenty learned enough-to say the least!-to be a Supreme Court Justice. While originalists like me disagree with him, we can still find areas of doctrinal commonality between us. A Justice Sunstein would be both a worthy opponent for originalists, and, perhaps more often than some might expect, a valued ally. For this, his nomination to the Supreme Court by President Obama to fill the seat being vacated by Justice Souter, ought to be desired across ideological lines.
Read the rest of The New Ledger's case at the link. I don't wish to prejudge the President's pick, but I'm doubtful that Cass Sunstein would pass muster in the current White House. He's neither a member of a minority group nor is he female. It's a sad fact that one of the qualifications for being appointed to the most important court in the land is a biological trait over which one has no control and which has nothing to do with one's fitness for the office, but that's the world in which we now live. In our postmodern society racial and gender identity are considered every bit as important - if not moreso - as the keenness of a candidate's legal mind.
RLC
