Justice David H. Souter, was the 105th person to get the job of being a judge with none higher, at least from the secular perspective.  Only one of nine, of course, but that’s still a pretty significant vote.  And unlike others, Justice Souter has chosen to close up shop while he is still young, vital and healthy enough to enjoy the benefits of being a rock-climbing former justice.  The manner in which he’s taking his leave reflects dignity, a rare commodity.

Speculation on who the next justice would be began during the Obama campaign, with the natural claims that he would appoint some wild lefty to fill the seat.  To the people complaining, everyone left of Genghis Khan is a wild lefty.  But the greater likelihood is that the politics of identity will play a larger role at first in the pressure to be applied by the various interest groups.  As much as I’m disgusted by the notion that it’s more important that our laws and Constitution be decided by someone based upon immutable and irrelevant characteristics, to ignore this would be folly.

The two initial traits to be demanded are gender and race, with the expectation that the Court needs a second woman and has a glaring hole where a Hispanic should be.  Why this is so remains unclear, since neither females nor Latinos are some monolithic group where the members are fungible.  Did we learn nothing from Clarence Thomas?  It is particularly galling that, as we argue and some even believe that gender and race should become nonexistent factors in America, we continue to harp on them unmercifully.  Black president aside, we’re still a ways off from being gender and color blind. 

The advocates of a woman or a Hispanic will explain that by putting one on the Court, we will inure people to the hard fact that they are here, they are as worthy as anyone else and they are ready to take their place as leaders.  To say this is to suggest that it’s a question.  There is no question.  We’ve had female Supreme Court justices already, and we know they can do the job.  There has been no Hispanic justice, but does anyone really think that Hispanics can’t do the job?  I think we’re past that.

The next question is political ideology, which is the one that seems most interesting from where I sit.  I remember a day when the Court really stretched its wings on the issues of civil rights and personal freedom.  A fellow named Earl Warren was in charge, and decisions made by his Court are still household names and fix the parameters of the world we enjoy.  How many Supreme Court decisions since Rehnquist put velvet strips on his black robe can be remembered by anyone other than lawprofs and wonks?  Think about it.  The measure of a Supreme Court is the extent to which its work impacted society.  Anything less and it’s just a spaceholder.

I’ve complained that the Supreme Court has lost its function in our society, issuing decisions that decide little and raise more questions than we started.  The whole trend of judicial modesty is sorta nuts; If you open an issue, then give us a complete, useful answer on what to do.  Anything less and you’ve just taken the law and made it a mess for the rest of us to suffer and sort out over the next 20 years, only to learn that some future Court will eventually tell us how we got it all wrong.  Of course, they still won’t tell us what is right, and all the nice men and women who relied upon the Court’s pronouncements to their detriment will have a moral victory, which they can enjoy from their prison cell.

Given how important the Supreme Court could be if only it fulfilled its function, these are the things I urge President Obama to consider in selecting the next justice:

1.  Experience:  Without question, the most important criterion is that a Supreme Court Justice possess a breadth of experience in the real world, including a firm appreciation of how real people live, work, love and behave.  The appointee must understand and appreciate that most people aren’t brilliant, didn’t go to Harvard, can’t grow up to be President and struggle with trying to understand what the right thing to do is so that they can do it. 

They need to know that there is no such thing as “common” sense because there is nothing common about the human experience.  We each possess our own, and extrapolate that to everyone else.  Every time I see a judge hide behind “common sense,” I see a coward and someone lacking in intellectual integrity.  We need a justice who is neither.

Experience isn’t learned from a book, or is something we pretend to have because we’ve read numerous law review articles on the subject.  Experience is gained by being on the street as well as in the courtroom.  The surest path to the bench is to hole oneself up in the wood-paneled rooms of the courthouse.  It’s also the place where one is isolated from real experience and insulated from the real world. 

The next Supreme Court Justice should know what it’s like to listen to the ignorance, fear and craziness of litigant trying to comprehend why the law can’t seem to cure their ills.  The next justice should know how it feels to have a judge try to humiliate them in a courtroom because they wear the robe and get to make the rules.  The next justice should appreciate that the 5+ years between the start and end of child custody proceedings destroys lives and ruins children.  The next justice should know how it feels to be innocent and in prison because some legal fiction was more important than some person’s life.

And for the record, this experience doesn’t come from a few years working as a government lawyer, where none of this experience is ever gained.

2. Intelligence:  A certain level of intelligence is required, but not too much. Intellectual integrity is far more important than intellect.  The law is for real people, not theoretical discussion or doctrinal purity.  Intelligence isn’t a negative, per se, but can be when it interferes with someone’s ability to feel compassion, to appreciate that others may not be or behave in a way that meets the expectations of the Oxford Don or society matron, or to understand what it’s like to live in a world of powerlessness.  Intelligence is often over-rated.  Smart is much better.  Integrity even better than smart. 

3.  A real person: Rarely does anyone climb the ladder of professional importance without it affecting their view of the world.  The unfortunate loss in the process is that they forget, if they ever knew, what it’s like to grab a beer after a hard day’s work.  This is where most of us live, and where we talk about the things that matter.  The bottom line to every decision the Supreme Court issues, or more accurately, should issue if it did its job, is that it must fulfill the expectations of real people.  Real people aren’t afraid to disagree when they disagree.  Real people actually believe in things.  Real people temper their belief with the understanding of how it affects real people.  Real people are not idealogues.

No, this is not a plug for Joe Six-Pack, the fictional beer swiller who wants courts to vindicate his prejudices without having to suffer the indignity of thought.  This is a plug for protecting all the Joe Six-Packs out there from themselves, knowing how stupid and thoughtless people can be, how prejudice pervades their opinions, how self-serving their choices. 

There are, of course, many others characteristics that could be brought into the mix, but these are the main considerations.  The rest are the details, and they can be debated ad naseum. 

This said, the person who stands poised to be the right choice for the Supreme Court of the United
States of America is 2nd Circuit Judge Sonia Sotomayor. 

And as it happens, she’s female and Hispanic, for whatever that’s worth.