Professor Alan M. Dershowitz has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.” He is the Felix Frankfurter Professor of Law at Harvard Law School, a graduate of Brooklyn College and Yale Law School. Dershowitz joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.
[cnn-photo-caption image=http://i2.cdn.turner.com/cnn/2009/images/05/01/dershowitz.art.jpg caption="Harvard Law Professor Alan Dershowitz describes Justice David Souter as a 'very, very good justice.'"]
In Washington and throughout the nation’s legal system, speculation took off Friday over who may join the Supreme Court following the retirement of Justice David Souter. A source close to Souter told CNN Thursday that Souter plans to retire after the current term recesses in June, bringing to an end his more than 18 years on the bench.
Harvard Law Professor Alan Dershowitz spoke to John Roberts on CNN’s “American Morning” Friday via phone from Pompeii, Italy.
John Roberts: It’s interesting to note that David Souter was appointed by a Republican, Bush 41, back in 1990. Yet, he waited for a Democratic president to take power to announce his retirement.
Alan Dershowitz: There’s no question that he became a real disappointment for the Republicans. He was a stealth candidate who emerged as a kind of centrist inclined to a liberal. In fact, the Souter appointment became a verb - they will never “Souter” anybody again. They will make sure that everybody is so carefully vetted so that they get true-blue conservatives. He was regarded as a warning sign and as a mistake by the Bush administration. And he emerged as a very, very good justice.
Roberts: What type of person do you think President Obama will pick to fill this post? He can't affect the balance of the Court with this pick, so do you think he'll go for diversity?
Dershowitz: He has the option here. Because this is a white male who's leaving the Court, he's not locked in. He doesn't have to fill a slot - an African-American slot, a woman slot. The most qualified candidate may well be a woman or a person of African-American or Asian background, but he has a complete open availability because probably the next retirement will be Justice Ginsburg and he will have to have a woman on the Court. I think he’s going to be looking for somebody relatively young. Somebody who can take on people like Scalia and Alito and Roberts. So he could have an impact actually on the balance of the Court, not in terms of numbers but in terms of the quality of opinions and the enduring nature of his appointment on the Court.
Roberts: How deep is the Democratic bench from which to pick a replacement?
Dershowitz: It's very, very deep. There are some who think it shouldn't be yet another judge. There are now nine judges on the court - circuit court judges. Perhaps somebody from politics, Somebody who used to be a governor or a senator or somebody who has real political experience or practical litigation experience. And then there are of course the judges, the academics, the usual people from whom past presidents have picked. He has an enormous opportunity to affect the life of the nation well beyond his own term by this appointment.
Roberts: Let’s take a look at the names being floated. This is not an official list. This is what political and legal watchers have put together. Sonia Sotomayor, who’s from the Second Circuit Court of Appeals. She's one of the judges who might be up for this appointment. Diane wood, of the Seventh Circuit Court of Appeals. A seasoned politician, Jennifer Granholm, the governor of Michigan. She's also the former attorney general. Elena Kagan, the solicitor general designate as well. If you were to look at that list, who do you think you’d pick?
Dershowitz: Well I have a little bias. Two of them are my former students. The governor of Michigan and former dean of Harvard Law School Elena Kagan were my former students. I’ve argued in front of Judge Sotomayor, who is a superb judge. They’re all excellent, excellent picks. There are also men who would be excellent picks. There is the former dean of Yale Law School, Harold Koh, who would be the first Asian American on the Court. Any one of them would be an absolutely superb pick. I think the goal is to make sure there are no litmus tests. You shouldn't look to the past – what are peoples’ views on abortion? Who knows what the big issues are going to be 20 years from now. Whoever is picked is going to serve in the next generation. So he has to be looking for somebody who will make an impact. Somebody in the mold of a Brandeis, a Holmes, a Brennan. Somebody who really will leave a legacy, not only by their votes, but by the quality of their opinions. And everybody you mentioned on the list fills that bill and there are many not on the list who would fill that bill as well.