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May 02, 2009

Predicting how Obama will choose a Supreme Court Justice

In light of Justice Souter's resignation, speculation is intense about the kind of justice that President Obama will appoint.  Most of this is just pointless noise; it's a good bet that the list was short before Souter's announcement, and that the POTUS is deciding now among a very small group. I think the best rule of thumb for a prediction is that Obama will appoint a person who he thinks will be the kind of justice he would be. (And Justice of the Supreme Court would be, imho, an excellent position for the big O after the end of his presidency.)

Last summer the NY Times published eight of the exams (scroll to bottom of link) that Obama gave while he was teaching at the University of Chicago Law School, together with two sample answers.  Almost every exam includes a question that involves sexual orientation or reproductive rights or a combination.  

To me, the most important aspect of this window into his thinking lies not in his answers, but in which questions he found intriguing and rich enough to build an exam around. Consider the 1996 con law exam (Part I), in which students had to analyze a "Preserving Family Values Act," that prohibited furnishing infertility services to homosexuals.  This was seven years prior to Lawrence v. Texas, although even today the Equal Protection Clause analysis would still be centered on Romer v. Evans, then only a year old. Read Professor Obama's analysis of that aspect of the hypothetical statute (pp 5-6).   it's cool, critical and analytical. 

This President knows and cares a great deal about the law. Among the names being endlessly recylced by the press as potential nominees, consider which would be most likely to write the questions and model answers as Obama did.  That's the short list.

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