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Following Souter - Editorial

Publication Date: 
May 06, 2009

Professor and former Dean Kathleen M. Sullivan and Professor Pamela S. Karlan are named by a panel of legal experts in an article for The Nationa as top choices to replace the departing Justice of the Supreme Court David Souter:

...We asked a panel of legal experts to name their ideal Supreme Court justice. The selections (printed below and online at are varied, from acknowledged front-runners to unlikely yet sterling legal advocates.


Dahlia Lithwick '95, Senior Editor for Slate: A candidate I'm excited about is Stanford Law School's Pamela Karlan. Karlan is young--born in 1959--but the crucial quality she would bring to the court is an epic constitutional vision: a story about progressive American jurisprudence as inspiring as the stories of originalism and textualism offered by Antonin Scalia and John Roberts. Karlan is co-author of a new book, Keeping Faith With the Constitution, that roots the liberal theory of judicial interpretation in the text, structure and history of the document and returns the Constitution to ordinary Americans. Karlan is, like Scalia, a gifted writer and brilliant legal thinker, with a deep, broad understanding that spans legal fields. If pure intellectual candlepower is as critical to President Obama as I suspect, she should be at or near the top of his list. I'd be remiss not to add that she may well be the funniest woman I know.

Finally, Karlan has that quality that Obama calls "empathy." She gets it. As founding director of Stanford's Supreme Court Litigation Clinic, she has helped represent defendants from criminal and civil rights matters, for free. She is an outside-the-Beltway, off-the-bench human who could breathe fresh air and fresh energy into the liberal wing of the Court.


Herman Schwartz, Law professor at the American University: I would be happy with any of several candidates, including Stanford law professor Kathleen Sullivan, Pamela Karlan and Sonia Sotomayor.


Jamie Raskin, Law professor, American University: Stanford Law professor Pamela Karlan would be the runaway knockout choice. As a justice on the Court, she would have the same kind of electrifying and transformative effect on American justice as President Obama has had on American politics.

What makes this constitutional law professor perfect for the job is that her core specialty is the law governing the political process and elections, which has been a field of broken dreams for more than a decade on this contemptuous, democracy-trampling Supreme Court. From Bush v. Gore to the Shaw v. Reno line of cases striking down majority African-American and Hispanic Congressional districts to the Voting Rights Act, campaign finance and ballot access cases, the battered liberal wing of the Court has lacked a powerful visionary champion of democratic values and practices.

A dazzling elections and voting rights attorney who has worked pro bono for the NAACP Legal Defense Fund, Karlan would bring brilliant passion to the project of seeing that all votes count and that the popular will not be thwarted by schemes, brutish or subtle, to suppress and nullify participation.

Co-author of a leading casebook on the law of democracy, a gifted scholar with a common touch, Karlan would quickly reclaim the mantle of constitutional populism from its phony friends on the right, who pose as friends of the common man but show contempt for representative institutions and the legislative process at every turn and even shut down vote-counting when it seems convenient.

Karlan has a golden pen, a penchant for lucid analysis and cogent quip, and a far greater sense of the meaning of constitutional rights for people without power and wealth than anyone else in the running. As a former law clerk to Justice Harry Blackmun and the founding director of Stanford's Supreme Court litigation clinic, she's no stranger to the High Court and would teach Justice Scalia some lessons about logical rigor and legal reasoning in the cause of freedom. But as a leading legal academic and practitioner whose passion is justice, not power, she would profoundly change the chemistry of this out-of-touch and arrogant bench (remember Lilly Ledbetter). President Obama, who taught constitutional law and election law, can surely recognize a kindred spirit. "Justice Karlan": try it on; the title fits.


Victor Navasky, publisher emeritus, The Nation: Because I strongly believe the Court suffers from a lack of gender and other sorts of diversity--and because I think people involved in the judicial selection process, even though they know it is not a requirement that the candidate be a lawyer, will not take seriously my other first choice, Toni Morrison (who has the wisdom, values and capacity for creative solutions that a great justice ought to possess)--I would not be at all unhappy if the nomination went to: Diane Wood, who clerked for the late justice Harry Blackmun and apparently much impressed Obama when they were fellow faculty members at the University of Chicago law school; Kathleen Sullivan, the impressive First Amendment scholar and former dean of Stanford Law School who carries on a lively legal practice; or that other former Blackmun clerk (and an award-winning Stanford teacher), Pamela Karlan, whose constitutional law casebook I am told is superb, as are the pieces she has done for this and other nonlegal (as well as legal) periodicals.