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May 26th, 2009
08:00 AM ET

Four unconventional picks for Supreme Court nominee

David Gewirtz | BIO
AC360° Contributor
Editor-in-Chief, ZATZ Publishing

It's not like President Obama doesn't have anything better to do with his time. And yet, with Justice David Hackett Souter stepping down from the Supremes, Mr. Obama's to-do list now includes the opportunity to shape American justice for decades to come.

The President may very well choose a new justice from the lower courts. While that's probably the right thing to do, I thought it would be interesting to look at some candidates who are almost definitely not on the President's short list - but might make interesting nominees.

What follows are four individuals who might actually do a good job, but will probably not be sitting on the bench anytime soon.

Barney Frank

Why he would be fun: Barney Frank is loud, belligerent, and entertaining. And after chairing the House Financial Services Committee, it's not entirely clear whether our financial woes are, in part, Frank's fault. But there's no doubt that Frank would shake up the bench.

Why he might be confirmed: Barney Frank was only the second "out" gay congressman and he'd be the first openly gay justice. Frank also represents two other key constituencies: he's Jewish, and angry, aging white men are feeling a little under-represented these days. Having been in Congress for so long (and showing no sign of leaving), many Congress-critters may confirm him just to get him out of the House.

Why he might actually be good: Frank is one of the most powerful and experienced members of Congress and would bring a broader perspective to the court than many other nominees. And he's qualified, having graduated from Harvard Law. His interest in key issues that will almost certainly be before the court sometime in the next few years, from legalizing pot to civil liberties to rights for lesbian, gay, and trans-gendered individuals, would mark him as one of the more open-minded justices on the bench.

Hillary Clinton

Why she would be fun: Hillary is nothing if not a great story. Moving from First Lady to Senator to SecState to Justice would be a great American story. Plus, it'd take her out of the running for any future Presidential campaign, which would keep the pundits busy talking for years.

Why she might be confirmed: Every other member of Congress is thinking about competing against Hillary in 2012 or 2016. Taking her out of the running early would be a strategic win for most of her potential competitors.

Why she might actually be good: Hillary is an accomplished attorney and she has a broad range of experiences. Her campaign experience has given her a chance to meet a variety of Americans and get a real perspective on the issues facing us all. She's also met many world leaders, an experience very few other justices or prospective justices share. And there's no doubt she's able to handle the material.

Colin Powell

Why he would be fun: We'd all get to watch Dick Cheney's head explode.

Why he might be confirmed: Colin Powell has years of experience in global issues, also has a broad world view, and grew up in Harlem. One thing that might get in his way: the whole WMD thing.

Why he might actually be good: He's the only nominee on this short-list without a law degree, but his broad military and diplomatic perspective could give new flavor to the court. He's also shown a willingness to look beyond party lines.

Professor Lawrence Lessig

Why he would be fun: Larry Lessig is a pioneering intellectual property rights advocate. He's outspoken and intellectually challenging. Besides, the record industry hates his guts.

Why he might be confirmed: Educated at Yale, this Stanford law professor has an outstanding resume as a legal theorist and thought-leader. He'll have a tougher challenge getting confirmed because he's attacked Congress on numerous occasions for corruption issues. He's also been a big proponent of using technology to hold our politicians accountable. He has actual, related experience, having clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

Why he might be good: Lessig is one of the saner legal voices in a world where the Internet is so prevalent. Lessig gets technology and technology issues, was a board member of the Electronic Frontier Foundation, a nonprofit that's been at the forefront of technology-related rights issues. He'd be our first truly tech-savvy justice in an era where more and more cases reaching the court will require some deep technical awareness. Also, at just about 48 (Happy Birthday, Larry!), he'd be on the bench for a good long time.

Follow David on Twitter at http://www.twitter.com/DavidGewirtz

Editor’s note: David Gewirtz is Editor-in-Chief, ZATZ Magazines, including OutlookPower Magazine. He is a leading Presidential scholar specializing in White House email. He is a member of FBI InfraGard, the Cyberterrorism Advisor for the International Association for Counterterrorism & Security Professionals, a columnist for The Journal of Counterterrorism and Homeland Security, and has been a guest commentator for the Nieman Watchdog of the Nieman Foundation for Journalism at Harvard University. He is a faculty member at the University of California, Berkeley extension, a recipient of the Sigma Xi Research Award in Engineering and was a candidate for the 2008 Pulitzer Prize in Letters.


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