Obama’s Supreme Court Nominee—Let’s Avoid Surprises

May 19, 2009

Justice David Souter was a gift to friends of church-state separation. Picked by the elder Bush, Republicans thought he was a conservative jurist. Granted, he did not have much of a track record—he had been on the First Circuit Court of Appeals for only a few months when selected—but this was considered a point in his favor. Because he was a stealth candidate, there was no record to criticize during Senate hearings. Right-wing politicos assured Bush he had nothing to worry about.


Souter is no left liberal ideologue. He is a moderate who has taken a very studious, thoughtful approach to interpreting the Constitution. He has proven, however, to be a staunch defender of church-state separation, contrary to the expectations of many. Moreover, he has been very articulate in setting forth the rationale for the separationist position. His concurring opinion in   Lee v. Weisman (the case ruling that public school graduation prayers are unlawful) is a masterpiece of historical and jurisprudential analysis. His departure from the Court would have been a blow to the First Amendment had the authority to nominate his replacement been in the hands of a president indebted to the religious right. Thank goodness Obama is making the selection—right? 

Well, it all depends on how carefully Obama makes his selection. Many of the jurists on his rumored short list seem well-qualified, but I would feel a lot safer if Obama selected someone with a proven record of defending church-state separation. We do not want any surprises. We do not want a reverse-Souter.

This is why I prefer U. S. Appeals Court Judge Diane P. Wood. Not only is she an eminent legal scholar, but she has written at least a couple of opinions on church-state issues which indicate she will favor a strict interpretation of the Establishment Clause.  One of these opinions, involving a challenge to the prayer practice of the Indiana General Assembly, also shows that she takes an appropriately expansive view of standing in Establishment Clause cases.  (Unfortunately, Judge Wood was the dissenter in this case,   Hinrichs v. Speaker of the House of Representatives )

Demonstrating standing to sue has proven to be a significant obstacle for Establishment Clause plaintiffs. It would be good to have a justice on the Court who will not bar the courthouse door to Establishment Clause litigants with meritorious claims.

Also in Judge Wood’s favor is her strong stance in favor of reproductive choice. She has opposed mandatory waiting periods for abortions as well as restrictions on late-term abortions.

This is not to say that the other individuals Obama is reportedly considering, such as Sonia Sotomayor, would not be good justices.  But given the critical gap that will be created by Souter’s departure, I would prefer to go with what appears to be a relatively safe bet.