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Some Legal Activists Have Hearts Set on 'True Liberal'

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By Robert Barnes and Kevin Merida
Washington Post Staff Writers
Sunday, July 20, 2008

It could be seen as the sincerest form of flattery: Ask some activists on the left the kind of Supreme Court justice they would like to see a President Obama appoint, and the name you hear most is the same justice they most often denounce.

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They want their own Antonin Scalia. Or rather, an anti-Scalia, an individual who can easily articulate a liberal interpretation of the Constitution, offer a quick sound bite and be prepared to mix it up with conservative activists beyond the marble and red velvet of the Supreme Court.

Some have even mentioned Sen. Hillary Rodham Clinton for the role, although there is no evidence it would interest her or that Obama would consider his former rival for the Democratic presidential nomination for the court. But as the Supreme Court takes its traditional spot in the background of the presidential campaign, there is a longing on the left for a justice who would energize not only the court's liberal wing, but also the debate over interpreting the Constitution.

"Someone with vision," said Doug Kendall, who recently helped found a new liberal think tank called the Constitutional Accountability Center. "Someone who looks hard at the text and history of the Constitution, as Justice Scalia does, and articulates a very clear idea of how that text points to liberal and progressive outcomes."

Liberal legal activists have consistently lagged behind conservatives in convincing their partisans that the court should be a voting issue. The court remains ideologically split, but any openings presented to the next president are almost sure to come from within the court's liberal wing. The two oldest members of the court are Justices John Paul Stevens, 88, and Ruth Bader Ginsburg, 75.

If John McCain were elected, the appointment of a conservative justice could immediately reshape the court. The senator from Arizona might be forced to temper his choice to accommodate confirmation by a solidly Democratic Senate, but his nominee would undoubtedly be far to the right of either Stevens or Ginsburg, potentially solidifying a five-member conservative majority. President Bush's appointments to court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are both relatively young and are expected to be fixtures for decades.

If Obama had the opportunity to make an appointment, it would be only the fourth nomination from a Democratic president in more than 40 years. And for activists on the left, it could signal the opportunity to create a new dynamic for the court.

"It is a court with no true liberal on it, the most conservative court in 75 years," said Geoffrey Stone, a law professor at the University of Chicago, where Obama once taught constitutional law. "What we call liberals on this court are moderates, or moderate liberals, if you want to get refined about it."

Stone notes, as he said Stevens has, that every justice on the current court with the exception of Ginsburg is more conservative than the justice he replaced -- a natural evolution given that seven of the nine were appointed by Republican presidents.

Harvard law professor Lani Guinier hopes to get scholars, as well as judges, to rethink the role of a Supreme Court justice, a role she describes as "the justice as a teacher in a national seminar, an educator."

"They're not just making laws and delivering those tablets from Mount Olympus," Guinier said. "The project of being a Supreme Court justice is also a project of being an important citizen in a democracy."

While Guinier said she would not necessarily argue that the next president should nominate a politician, she said it was important to "make the court more democratically accountable."


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