President Obama is getting lots of advice about who should replace retiring Supreme Court justice David Souter. Basically, the advice is all the same” “Pick one that’s like me!”
The new justice should be Hispanic, or black, or a woman, or gay, as if being a member of a class will engender jurisprudence.
I won’t argue against the notion that certain life experiences can infuse one’s view of what the Constitution protects. And the right’s criticism that the new justice should only interpret the law, not make it, and be a “strict constructionist” is laughable. The right, after all, was perfectly happy to have a close majority of the Supreme Court decide an election. And they wanted the courts to interfere with a husband’s right to make health decisions for his incurable, terminal wife. Don’t make law, they say, unless it is a law they like.
Empathy is not what I’d look for in someone to take Souter’s seat. Experience is. Experience in the law, sure, but also in the fresh experience in America. I think the president should chose someone who is close to his or her Americanization. By that I mean I’d like to see someone who, if not a naturalized citizen, is the offspring of immigrants. Someone who saw his or her parents struggle to learn the language and customs, fight discrimination and sacrifice to allow their child to fulfill the America dream.
Certainly a few of the usual suspects bandied about as nominees would fit this description. But the important thing is not that they are Hispanic in particular, but that they have witnessed first hand the Americanization process. I think such a person has a particular outlook on what the American experience can mean. I don’t want them to rule in any particular way on immigration or any other issue. I just think American justice and freedom is a bit fresher in their minds than those of us who aren’t as close to the immigrant experience.