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May 1st, 2009
10:13 AM ET

Dershowitz: Top court vacancy wide open

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.

Harvard Law Professor Alan Dershowitz describes Justice David Souter as a 'very, very good justice.'

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.


Filed under: Supreme Court
soundoff (31 Responses)
  1. Kelly J.

    Republicans have politicized the Supreme Court to the point where so many of us have lost all respect for the court's opinions. When you have continuous 5-4 decisions, that's about politics and ideology- NOT fair and impartial review of the Constitution.

    I'm hoping Obama will return to the time when Supreme Court justices were picked based on intellect and the quality of their opinions, not whether or not they support abortion rights. Women have the absolute right to decide what happens to their bodies. Get over it people!

    I think he's right to choose someone with empathy, as long as they have the right credentials.

    Now, with a little luck, Scalia will go on a hunting trip with Cheney and we'll be on to a second pick!

    May 1, 2009 at 7:11 pm |
  2. Leslie Buch

    Brian : It's actually "coup d' etat".

    May 1, 2009 at 6:05 pm |
  3. Brian

    Rob: That's coup de etat.

    May 1, 2009 at 2:28 pm |
  4. Rob Loughrey

    Alexander the second amendment only gives the right of the states to form 'Well-regulated militias" ie. the National guard. No where in the second amendment does it guarantee the right of the individual to have a gun. Where the idea came from is that during the time of the American Revolution the militia was formed by calling up individual people with thier own privatly owned muskets.

    May 1, 2009 at 2:17 pm |
  5. Alexander

    Holding individual rights as written in our constitution at a very high level?? LOL!! You can be certain whoever he picks will not hold the Second Amendment rights up to the same standards.

    May 1, 2009 at 1:04 pm |
  6. MAC

    I nominate The Honorable Nancy Gertner of The United States District Court of Massachusetts.
    A State Supreme Court Justice, Professor, lecturer, and esteemed recipient of The Thurgood Marshall award, among many other prestigious awards.
    A champion for womens rights, with a long, high profile resume well suited, and a perfect fit for this upcoming vacancy.

    May 1, 2009 at 12:57 pm |
  7. Steve in Sherman Oaks

    Sotomayor and, in fact, any of the people named in the article would be great picks, not just because of their racial background or gender. They are all great legal minds (O.K., maybe the jury is still out on that as to Granholm, but she is really, really smart) and would be great picks if they were white males. That they add diversity to the bench is a plus, but Obama should pick the best person for the job. It is just that the best poeple for the job are often women, minorities, etc.

    May 1, 2009 at 12:55 pm |
  8. Greg, San Francisco, CA

    No matter who Obama picks I am certain it will be handled better than the Harriet Myers nomination.

    May 1, 2009 at 12:55 pm |
  9. Rob Loughrey

    I agree that having a President that was a constitutional lawyer will help enormously. I can't see him picking someone primarily for political reasons as Bush did. I'm sure he'll be under pressure to find a "diversity" choice, but I think that will come second to their qualifications.

    May 1, 2009 at 12:53 pm |
  10. JIm

    May we hope he picks not a politico to "balance the right wing" but a person who has the depth akin to an iceberg in our history, experience, jurisprudence and intelligence befitting the role.

    May 1, 2009 at 12:52 pm |
  11. Daniel

    Obama should not be concerned with picking a "liberal," moderate" or "conservative" since interest groups will reductively and falsely label potential nominees into these groups. Instead, he should nominate someone using this as the predominant criteria: a demonstrated record of excellence (excellence is not partisan) as a lawyer, a a judge, as a lawmaker. Such a person, sadly, would probably rejected no matter who controls Congress since Congress is run by hacks who vote for nominees based on how they answer litmus questions. Greatness should be the predominant criterion for appointment; "consensus" leads to mediocre appointments like Anthony Kennedy (although I disagreed with the views of Robert Bork, he articulated them with intelligence and was a very capable jurist. Because he made his views known, though (proving you CAN discuss "issues that may hypothetically come before the Court"), he was punished, and that was unfair. He gave the Senate enough information for it to fulfill its advise and consent role, and then Reagan threw him under a bus. Here's an idea on which hopefully all can agree: the candidate we should avoid picking most of all is a poor or mediocre one, regardless of political or judicial persuasion. I am a Democrat (not a liberal), but would rather see an excellent conservative appointed to the bench than a hack liberal.

    May 1, 2009 at 12:51 pm |
  12. jeffreyjoemiller

    It's time that SCOTUS has an openly gay judge.

    May 1, 2009 at 12:48 pm |
  13. Ju

    Sonia Sotomayor would be a good pick.

    May 1, 2009 at 12:46 pm |
  14. Daniel

    Why not nominate Dershowitz? Dershowitz is a zealous defender of the Bill of Rights (or, as conservatives call him, a traitor). He is liberal in that respect but is more conservative in another respect, believing (to some significant degree) is a strong executive. Most importantly, he shares a judicial philosophy (his views on all of these issues are well-known) with which I agree: that which is not forbidden for individuals to engage in is permited. Contrast this with "states' righters" Alito and Roberts, who believe that if a law ever existed denying freedoms under the Bill of Rights, no matter how unconstitutional the law, the law is valid – rights can only be earned if specific laws secure them. This approach to justice is much more statist, much more "government intrustion," for two individuals who profess, politically, and judicially, for the government to be one of limited powers (well, at least where corporations and one of the ten amendments – only one – is concerned)

    May 1, 2009 at 12:45 pm |
  15. J Wymer

    The idea that Obama would make this pick without a series of litmus tests is absurd. He is just like any other president – a fancy political suit designed with calculating cloth and tailored to protect his legacy.

    May 1, 2009 at 12:43 pm |
  16. Daniel

    Henry Miller,

    Mr. States' Rights, ask yourself this question: States rights TO DO WHAT? The Tenth Amendment also states that power is reserved to the people, but states' righters always end up deciding in favor of the state instead of the individual when it comes to the individual citizen. I do not believe it "states' rights" when what the state wants to do is something valid federal law makes illegal, when the state deprives ciitzens of state or constitutional rights. Also, be careful what you wish for. 10th Amendmenters never ultimately realize that states' rights aren't always a good thing. New York claims a 10th Amendment right to treat the Second Amendment non-existent. Again, states' rights to do what? To effect racial discrimination, unequal protection of individuals and corporations, or to ensure that the rights of all individuals as against the government are protected? Orval Faubus used the Tenth Amendment to defy a desegretation order in Little Rock, Arkansas, and had to be reminded that under the Supremacy Clause, the Federal Constitution is the Supreme Court of the land. Is this the kind of "states' rights" you approve of? The Framers didn't approve of it, and they wrote the tenth Amendment.

    May 1, 2009 at 12:41 pm |
  17. Lanon

    Michigan will be glad to give him granholm, instead of screwing up Michigan she can concentrate on messing up the US

    May 1, 2009 at 12:39 pm |
  18. Gary E Zajdel

    Judge Souter's retirement comes as a shock to me.Why couldn't it be Thomas, Alito or the worst of the bunch, Scalia! Judge Souter, in my opinion was an excellent jurist. I did not agree with many of his opinions...but...agree or disagree, he always backed his opinion with intelligent argument.

    Moving back to the President's first Supreme court pick (I believe there will definitely be 2 more during his , Obama's, 1st term)...I like the idea of an individual who didn't previously sit on the bench. If it were up to me Professor Dershowitz would be my first pick! (seriously) Of course I don't think the consevative WASP croud has to worry, LOL. I like Gov Granholm however as my 1st non-judge pick. I doubt however that President Obama will choose someone who hasn't sat on the bech for his 1st pick. It's here where I trust the president to make a choice that will have a voice in reshaping (actually returning) our amazing country to reinstall it's citizenry in having a voice in it's own future. Godspeed Mr. President. Our eyes are watching as our heart's are with you!

    May 1, 2009 at 12:39 pm |
  19. Phil

    Defender of individual rights? I assume that means the right of individual super-power governments to kidnap and torture anyone they want without regard for the Geneva conventions, international law or any standard of human decency? That's the Alan Dershowitz we've all come to know and love.

    May 1, 2009 at 12:34 pm |
  20. DB

    He will clearly pick someone in the center-left tradition.

    By the way, with regard to the 10th Amendment, the history of its denigration goes back a long way. Conservatives and Liberals have gutted it, depending on who was in federal power and what their priorities were. Reagan used the power of withholding highway funds to force states to pass alcohol age limits of 21, which was a powerful tool to make the 10th Amendment less relevant.

    Accordingly, I don't see the recent resurgence of 10th Amendment fans, which is coming primarily from the cry baby red states, as having much relevance.

    May 1, 2009 at 12:26 pm |
  21. wildbill from Ohio

    What is needed is an individual who is NOT a politician, but a straight Constitutionist who through their education, knowledge of history and a clear understanding of the constitutional process. They will make decisions affecting America and American's rights based on the founding Fathers and the clear intent of the Contract with America, the U.S. Constitution. I want to see a person not on the personal agenda of a politician or party, and places the welfare of his or her country foremost.

    There will be attempts by the far left to change the First, Second and Fourth Amendments within the next three years and the Court must keep them in line as the same goes for the right-wingers. There has never been a larger threat to our rights than the last eight years and the next four years.

    President Obama, think very carefully on your nomination!

    May 1, 2009 at 12:24 pm |
  22. Mike Cairo, NY

    Sen. Kirsten Gillibrand, all the right stuff.

    May 1, 2009 at 12:24 pm |
  23. john webb

    INTERESTING THAT DERSHOWITZ SHOULD POP UP ON THE RADAR NOW. ONE OF THE MOST LIBERAL AMERICANS, HE NONETHELESS VEHEMENTLY ADVOCATED TORTURE AROUND THE TIME OF THE 911 ATTACKS. YES HE LITERALLY USED THE WORD TORTURE, NOT WATERBOARDING, NOT OFFERING MILK AND COOKIES. TORTURE. SO DO YOUR JOURNALISM JOB AND ASK HIM ABOUT IT RIGHT NOW. YOU DO YOUR JOB AND I WILL GO AND DO MINE.

    May 1, 2009 at 12:21 pm |
  24. Andrew

    PLEASE, NO POLITICIANS!! I think Justice Souter was absolutely right to see Bush v. Gore as the manifestation of politics in the highest court in the land. I admit I would like President Obama to pick a strong liberal, someone similar to Justice Ginsberg or Justice Stevens. However, what the President NEEDS to do is pick a moderate liberal/centrist. Adding another strong liberal to the Court is not going to shift the balance away from the Right, appointing a moderate/centrist would undercut Republican claims of not being bipartisan, and – most important of all – we need more justices who will actually JUDGE, instead of using the highest court in the nation to push their ideological agenda (i.e. Scalia and Thomas). Oh, as for the comment about the 10th Amendment, the issue of state nullification was settled by the Civil War and the Civil Rights Movement. Please join the 21st century, sir.

    May 1, 2009 at 12:17 pm |
  25. Rob

    Al Gore sure would be a cout de ta

    May 1, 2009 at 12:11 pm |
  26. tyrone

    Hopefully he will pick a justice that adheres to what is written in the Constitution and protects individual liberties against big government like Scalia Roberts Alito or Thomas. It seems myopic that there are certain "slots" on the Court like one seat must belong to a woman, another to an african-american, another to a Catholic, and another a white protestant. We want the best people regardless of their color, sex, or religious views.

    May 1, 2009 at 12:08 pm |
  27. Beverly T from NC

    I agree this justice needs to be more in touch with the America of today and should be a balance to these rabid conservative idealogues like Scalia who you already know how he is going to vote before the case even makes to the Supreme Court. He is a terrible justice in terms of being able to listen to both sides and give a no-political decision.

    I agree Dershowitz – we need to stop asking irrelevant questions of nominees that will mean nothing in 5 years. Gay marriage is going be to decided by the states themselves and will look as stupid as civil rights for black or interracial marriage within the next decade as a issue.

    Abortion is not valid. A woman's right to choose is a basic privacy right and Judge Ginsberg has made some excellent statements on this point. If conservatives really want to do something about abortion then they need to get realisitc and teach sex education, contraception choices, and maybe each one should adopt an unwanted child if they are so morally superior on this issue. Palin's daughter is the perfect example of conservative values on abortion being so skewed. A teenage taught abstinence who gets pregnant, drops out of school, huge fights with the father and his family and a child who is going oto grow up in a giant mess with young irrresponsible parents. Sarah Palin herself was pregnant with Bristol when she got married at the courthouse because her own church would not allow her to marry in the church since she was pregnant. The hypocrisy is sickening.

    Roe v Wade is going nowhere and you can argue all day whether it is should be in the Constitutional amendments or not but at least it protects women from these current backwards states like SC and from ignorant men making judgments on what a woman should or should not be able to do with her body and the reality of her life situation.

    Dershowitz is correct. We need to be looking for great jurists who can make important decisions based on looking at the future and not the past. We need jurist who can are political puppets and will make decisions based on the merits of a case and the future impacts of it versus how it meshes with their own personal beliefs. O'Connor was brilliant in that regard. She made excellent rulings based on the case and not on her politics. Ginsberg has made excellent rulings to ensure women were equally protected as a man would be.

    These are real and valid judgments – unlike those of Scalia who is going to vote politically every time and Thomas who is going to do nothing, consider nothing, say nothing, and just vote with whatever Scalia does because he is not capable of individual thinking and is in way over his head. He is the one who should be resigning – talk about a total waste of a seat. Thomas has never written a judgment, never asked a single question in any case before the Court, and never has voted except based on politics. He is a terrible and useless Justice.

    We need real people of character, excellent knowledge of the Constitution, the current legal environment in the U.S., real experience in real courts of law, and someone who is capable of individual and independent thought to create sound rulings based on the merits and implications of a case – not someone whose whole existence on the Court is to inflict rigid conservative politics on every decision.

    It is past time to create a balanced Court!

    May 1, 2009 at 11:59 am |
  28. steve mettner

    President Obama is so strategic in his decision making and a constitutional lawyer himself, that I'm very excited about him picking someone who will hold individual rights as written in our constitution at a very high level.....

    May 1, 2009 at 11:53 am |
  29. Al

    Kill two birds with one stone by choosing Sonia Sotomayor. She is Hispanic and a Woman.

    May 1, 2009 at 11:40 am |
  30. Jack Certer

    "I have a little bias". What a euphemism! I hope President Obama knows better than to listen to guys with a "little bias" such as this one.

    May 1, 2009 at 11:24 am |
  31. Henry Miller

    It would be nice if Obama picked someone who's actually heard of the Tenth Amendment.

    May 1, 2009 at 11:24 am |