Who should be Obama’s next pick?

By William Mckenzie

If more senators thought like Republicans Lamar Alexander, Lindsey Graham and Mel Martinez, tribal warfare would be in retreat on Capitol Hill, and that would help the country. Votes determined by blind party loyalty turn us into a nation of R’s and D’s, not Americans.

Those three and a few other GOP senators had pledged to vote last week to confirm Sonia Sotomayor to the Supreme Court. Unlike Texas’ Republican senators, Kay Bailey Hutchison and John Cornyn, they stepped outside their comfort zone and backed someone who doesn’t share their beliefs.

That takes courage, given the beating they’ve taken from some conservatives. But they are trying, as Alexander said, to return the Senate to the practice “of inquiring diligently into qualifications of a nominee and then accepting that elections have consequences, one of which is to confer upon the president the constitutional right to nominate justices.”

They also recognize Sotomayor’s breakthrough nomination, which represents another step in making America’s institutions resemble their nation. They get that she represents the mainstream of liberal jurisprudence, not an unpredictable liberalism that caused justices like William O. Douglas to pursue tangents.

The White House is getting a reliable replacement for David Souter, who over time became a predictable center-left justice. Based on her hearings and rulings, Sotomayor appears headed toward a similar role. Sometimes she might veer toward the conservatives, but I would be surprised if she does it enough to make her a real swing vote.

And that brings us to the disappointment with her nomination and what Barack Obama should do with his next chance.

We’re now in a center-left era, not the center-right one that guided the country from 1980 until Obama’s election. We need justices who will help us find a rational center, as Sandra Day O’Connor did from 1981 through 2005. At key moments, this Reagan nominee and fellow center-righter Anthony Kennedy bucked strict conservatism to forge compromises.

Kennedy still does that, although he recently has sided more with Chief Justice John Roberts’ reliable team of conservatives. Nonetheless, Kennedy remains the person from the right with whom a swing jurist from the left could join for a productive run.

Finding the middle

O’Connor certainly showed how to find the middle on big issues. She upheld abortion rights but favored restrictions around them. She supported affirmative action but put qualifications on its use. She upheld the right to restrict guns but didn’t go hog wild. Even in her favorite cause of giving states ample power, she didn’t go to an extreme.

If Obama’s next nominee follows in O’Connor’s path, that person could keep us on an even keel on major issues like race, guns, religion and abortion. While many on both sides favor absolutist positions, an O’Connor-like swing vote could help steer us away from all-or-nothing views.

I think Obama is a two-term president, so his absolutist challenge is more likely to come from the left than the right. Having been out of power, and sensing Obama’s more their guy than Bill Clinton was, the left could pressure the White House for liberal justices.

We can only hope he resists and finds someone with O’Connor’s characteristics. University of Michigan law professor Douglas Laycock summed them up this way in a phone interview: “She was intuitive and generally reacted to the facts of individual case. Small differences mattered.”

That will drive grand theorists batty, but the Supreme Court needs a few justices who also appreciate practicality.

Perhaps Sotomayor ends up being one, but I doubt it. If so, the important Obama nominee becomes the next one. We have a lot riding on him finding someone who can swing.

X William McKenzie is an editorial columnist for The Dallas Morning News. Distributed by McClatchy-Tribune.