In Praise of A Famous Republican and other matters

So where do we start?

Stormy Daniels, the Porn Star who has registered as a Republican to challenge "Diaper" Dave Vitter?

Pete Sessions, for holding fund-raisers in a Burlesque Hall, which is OK because "the women didn't take their underwear completely off."

Melanie Phister, the young Florida Republican who got a Committee AMEX card and charged $1.3 million to it. There's a deficit buster for you.

Orrin Hatch, who claims Obama will nominate a judge who just makes the law up. He hasn't been following Anthony Scalia lately.

Lamar Alexander, Senator from Tennessee, who has vowed to filibuster Obama's Supreme nomination, who doesn't exist yet.

Liz Cheney, for blaming Obama for wrecking our most important alliance--the one with Israel.

John McCain, who in his fifth incarnation, now says he really isn't a Maverick after all. During the campiagn, the real Maverick family in Texas pointed out their ancestors got the name because they were progressives.

Why don't we settle for a wealthy WASP, who was a WWII veteran and is about to turn 90? We really can't fight about that. The man told the New York Times Magazine that he was a "conservative judge" and he always wrote the first draft of all his opinions. The man's name is Judge John Paul Stevens. Liberals and progressives have been hailing Judge Stevens' commitment to equal rights and equal justice for all and his defense of civil liberties. I received e-mails from Senator Leahy and Vice President Biden hailing Judge Stevens.

But it all is rather sad to realize how brainwashed we have become that we can not acknowledge that Stevens once represented mainstream jurisprudence in this country. Nominated by President Gerald Ford, Stevens saved his best decade for last. I would say he saved his greatest dissent for last--his lacerating indictment of the majority decision in Citizens United. Tired and elderly he insisted on reading the dissent out loud to a crowded courtroom. What is still astonishing in that case was that the majority threw out over 100 years of precedence to affirm that companies--domestic and foreign--can contribute limitless money to political campaigns. In his dissent, Stevens warned that this case would seriously bring harm to the institution itself.

Stevens was a Republican but you would not know it from the columns by conservatives criticising him, saying he "brought harm to the law." How did the system deteriorate? Judge Stevens pointed out that every successor judge since 1971 was been more right than his or her predecessor with the exception of Judge Ginzburg. The same will occur with Stevens' successor unless President Obama wants a massive fight.

Judge Stevens' retirement reminds me of why my father-in-law, a WWII vet, a former FBI agent and a small town lawyer in a Chicago suburb cast his first vote ever for a Democratic presidential nominee. Even when his family was severely hit by the Great Depression on the Iowa farm, he did not cast a vote for FDR. Straight Republican all his life until Barack Obama. My father-in-law is an avid watcher of the Supreme Court and for him Judge Stevens' decisions are just commonsensical and remind lawyers of their high calling. As he watched the parade of Scalia, Clarence Thomas, Sam Alito and Justice Roberts, he saw this grand tradition being destroyed. He thought that a young professor of constitutional law might correct this. He just wished he kept the name Barry.

Liberals and progressives are hoping for Barack Obama to appoint a known liberal judge, not one that evolves into one, in order to balance the radical right nature of the present Court. The problem is that the judge that is needed right now has to be able to sherpa judges like Kennedy into a liberal position. It's more a matter of personal politics and interaction at this point than straight jurisprudence. In this regard, I think liberals and progressive will be somewhat disappointed because the time may not be right to finally tap a liberal Scalia.

Personally, I would like to see a real constitutional scholar appointed but excellence doesn't seem to be Washington's game. That man is currently at the Department of Justice, working to create programns to provide indigents with legal assistance. He is the country's foremost constitutional scholar and the former teacher of President Barack Obama. You can't get any more liberal than Laurence Tribe. That is out because Dr. Tribe marshalled the legal blowback that tarpedoed Judge Bork and his nomination would create a nuclear reaction, which doesn't fit the style of President Obama.

While Republicans are strutting about setting down conditions about what qualities the nominee must have, the National Review and former Bush justice types are suggesting that they would support Elena Kagan, 49, who is the present Solicitor General and has been through Senate confirmation after Senate confirmation since the mid-1990s. Eminently qualified, civil libertarians have raised questions about her embrace of executive power and her positions on detaining terrorist suspects without due process. The conventional wisdom is that she is favored.

Another colleague of Barack Obama's that has strong support among liberals and progressives is Diane Wood, 59, who is an appellate judge in Chicago. She would face moderate turbulence if nominated.

The one name mentioned which I don't know about is Judge Merrick Garland, a Federal appelate judge, who clerked alongside Judge Roberts when both of them were moving up in the world. He is known as a moderate liberal and noises from Republicans indicate he is acceptable.

The other scenario is to select a non-judge--over half of our Supreme Court Justices had been politicians, even Justice Sandra Day O'Connor and ,of course the most famous Earl Warren. Since the court will now have to decide more cases about legislation--healthcare reform, financial reform--there is an argument to pick someone who actually knows the intent of legislators.

Ezra Klein of the Washington Post suggests Hillary Clinton. Hillary Clinton would have the benefit of being a U.S. Senator and that crowd doesn't like to vote against their own and the lunatic base of the Republican Party would be divided since many supported her in theory and writings over Obama when they were contesting the Democratic nomination. There was this strange acceptance of her becoming President, even after all the right-wing conspiracy hijinks during her husband's Presidency. While I accept the logic of Hillary Clinton, it makes no sense to break up a good foreign policy team until it tires out.

Another possible politician suggested has been Governor Jenniffer Granholm of Michigan, who is living office this year and was instrumental in swinging Michigan to Obama in 2008. She would be considered a moderate liberal.

At this stage of the game, I think politicians would look as provocative as my idea of an Amercan Indian. This town is disoriented enough from the intense political activities of the last year that it can't stand being riled up unnecessarily. I think liberals and progressive will have to wait for a few years before President Obama can make a move to creating a more liberal court. The next logical retirement will be Judge Ginzberg so that Obama's chance doesn't come until his fourth court pick. Otherwise he is in a holding pattern of trying to maintain the current 5-4 setup.

The other consideration is that for the first time in the Court's history the President has to consider the Protestant Seat. With Stevens' retirement, there are no more WASPs on the court. If he can accomplish this with a woman, he will. But my gut tells me he wants to neutralize Judge Roberts' animosity toward him and his presidency so I go with Merrick Garland.

My real personal pick would be Elizabeth Warren, our great business law professor who is supervising the TARP funds and who has been a terrific spokesperson for financial reform. She also has the personality to disarm senile Senators and to win the public over to support her. She comes across as an earnest, truth-telling, frank but pleasant person that people would clearly recognize as an American stereotype.