The retirement of Supreme Court Justice David Souter means that President Barack Obama will get to leave his mark on the high court. What criteria should Obama use to select Souter’s replacement?

Obama has suggested that he wants a nominee with "empathy," drawing scorn from conservatives who believe the president is seeking an "activist" judge. There have also been suggestions that Obama might aim for diversity with his selection, adding a second woman — or a first Hispanic — to the nation’s highest court.

Would attempts to diversify the court water down its quality? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, judge the case.


Here’s hoping President Obama nominates a woman to the court. Or a minority. Or, heck, a minority woman. That would be great.

Why? Because there are plenty of qualified lawyers in America who fall into one or both of those categories, and yet white men continue to have a stranglehold on appointments to the Supreme Court.

Consider this: There is at the moment one woman and one black man among the court’s nine justices — the rest are white men — and this is a historical high point for the court’s diversity.

That’s not a surprise: It’s only in the last generation or so that women and minorities have joined the legal profession in large numbers. Even now the national bar can hardly be said to look like America — as of 2000, only a quarter of attorneys were women — but it looks more like America now than it ever has. It would be surprising and disappointing if the highest court in the land didn’t follow suit.

None of this would matter, perhaps, if justices really did make decisions — as Chief Justice John Roberts famously said at his confirmation hearings — like umpires, a passionless calling of balls and strikes.

But if that were so, every case would be decided by unanimous or near-unanimous majorities of the court. That doesn’t happen and it probably never will. The differences that make up the divide in 5-4 and 6-3 cases are informed by different understandings of the law; those understandings are shaped by (among other factors) the education and experiences of justices. And yes: Those experiences can vary by race or gender.

Obama’s critics suggest he can aim for diversity or for quality in making his nomination, but that he can’t have both. They’re wrong. Now is the perfect time to prove it.


The question isn’t whether the Supreme Court requires more diversity. As it turns out, white males are just as adept at doing violence to the Constitution as paraplegic gay Latinas. The question, rather, is whether the country can endure a jurist in the Obama mold.

Recall that when President Obama was still a senator, he voted against confirming Roberts and Justice Samuel Alito. Obama argued that the best judges tap into "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." In short, "the critical ingredient is supplied by what is in the judge’s heart."

Obama could not have provided a more succinct or terrifying definition of judicial activism.

When discussing the qualifications he would seek in a judge, the president said during his campaign: "We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African- American or gay or disabled or old."

No, we don’t. What we need are jurists devoted to the dispassionate pursuit of justice. We need justices who rely on what the Constitution actually says, not on what their heart tells them or what the president calls a "broader vision of what America should be." Obama’s "broader vision" is divorced from the idea of limited government that the Constitution’s framers wisely established. And it is at war with the traditional understanding of judging that is separate from politics.

The diversity game is not only tedious. It’s poses a grave danger to constitutional government as we know it.

(Ben Boychuk and Joel Mathis blog daily at and