Rummaging through the dusty files of judicial history, as I’ve been doing, has produced an insight about our contemporary situation: who President Biden should make his first nominee to the Supreme Court.

Stephen Breyer is under heavy pressure to step down. Last week, he told a CNN reporter at a coffee shop in New Hampshire he’s undecided – which means he’s thinking hard.

Some veteran court observers consider his retirement near-certain – the only question is when. If they’re right, it could come at any time, but certainly before the October term begins.

Breyer turns 83 next month, and is now the court’s senior justice. He was the second associate justice appointed by Bill Clinton, in 1994, though he was not the first choice.

Clinton’s first appointee, Ruth Bader Ginsburg, nominated the previous year, made the mistake of assuming she could go on and on, despite multiple bouts with cancer. When she died in September 2020, six weeks before the November election, it allowed Donald Trump to push the court still further to the right.

Breyer is reportedly enjoying his status leading the court’s three-member “liberal wing,” though the term is a misnomer. Clinton, and Barack Obama, were presidents of centrist sensibilities, and their appointees were solidly in the middle of the legal fraternity.

Not so with Republican presidents. In 1971, Lewis Powell, about to join the Supreme Court as Richard Nixon’s appointee, wrote a notorious memo to the U.S. Chamber of Commerce, outlining how big business, then on the defensive, could counterattack.

Powell was alarmed that Sen. Ed Muskie’s great environmental legislation was moving smoothly through Congress; the Clean Air Act passed in 1970, and the Clean Water Act in 1972.

Powell’s formula involved hard-line resistance to government regulations – and packing the court. Republican presidents must always defend corporate interests; other elements of contemporary conservative orthodoxy were later additions.

It took 20 years. The momentous swing to the right – though in popular accounts, it occurs every time a new Republican appointee joins the court – happened when Clarence Thomas succeeded Thurgood Marshall in 1991, the court’s leading liberal replaced by a judge far to the right.

Marshall, who fought his entire life for racial justice, argued Brown v. Board of Education before the Supreme Court; like Marshall, Ruth Bader Ginsburg was a brilliant litigator, playing a similar role in the fight for women’s equality.

Both brought passion and skills to the high court that were sorely lacking. Trump’s three appointees, by contrast, seemed groomed from law school onward.

If Joe Biden does appoint a new justice this year, he should keep this firmly in mind – and make a transformative pick.

During his campaign, Biden said repeatedly he’d appoint a Black woman, and he should – eventually.

The cast of qualified candidates is short, headed by Biden’s first choice for the D.C. Court of Appeals, Ketanji Brown Jackson, who’s served just a month – even less than Clarence Thomas’s 16 months on the same court.

The candidate who’d do most to fulfill Biden’s goals, and have the potential become a great court leader, is Biden’s predecessor – Barack Obama.

Obama’s appointment would be unexpected, even astounding – but there’s ample precedent.

Former President William Howard Taft served as chief justice from 1921-30, and greatly preferred the job to the presidency. He’d been pressured into running by Teddy Roosevelt in 1908, and often regretted it.

Taft’s successor was a near-president, Charles Evans Hughes, who narrowly lost to Woodrow Wilson when Wilson won re-election in 1916.

Obama would be even more qualified. A law professor at the University of Chicago, his intelligence and brilliance as a writer could be better displayed on the court than in the presidency, where his speeches unfortunately went unread in our distracted times.

We’ve come to see the court as a political institution, but it’s not. Nine judges – all equal in rank – meet in private to consider the fate of the Constitution, and the laws.

They have no choice but to face each other, over and over. And in those meetings, change is born.

Someday, Barack Obama could be chief justice; he turns 60 next month, inviting a long and fruitful tenure. And for Mainers who remember their own eminent political leader, George Mitchell, this would be a moment of vindication.

Already U.S. Senate majority leader, Mitchell turned down Clinton’s attempts to appoint him to the Supreme Court, first for the seat Ginsburg held and then, more seriously, when Breyer was appointed.

Had Mitchell, with all his abilities, been serving these 27 years, history would certainly have been different.

Obama has even greater potential. Seen that way, his appointment seems not only historic, but inevitable.

Douglas Rooks has been a Maine editor, commentator, reporter and author since 1984. His new book is “First Franco: Albert Beliveau in Law, Politics and Love.” He welcomes comment at [email protected]

Comments are not available on this story.

filed under: