The Limits of Influence

Article excerpt

Byline: Dahlia Lithwick

No way to pick a justice.

The hunt for Justice John Paul Stevens's replacement has become singularly focused on personality type. Instead of searching for the most brilliant jurist in the country, we have become obsessively focused on which candidate is most likely to influence the rest of the court. We talk about each prospective nominee as though we were adding a new castaway to Gilligan's Island.

And, so goes the narrative, President Obama is searching for a Mary Ann as opposed to a Ginger. He evidently wants a nice girl who gets along well with others. He's not interested, as the Los Angeles Times reported, in someone who writes passionate dissents. Obama is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court. He could announce his pick as soon as this week--the heavy betting is on Solicitor General Elena Kagan.

(The president, we hear, is also seeking a Gilligan: a man of the people with some distance from Ivy League colleges and the sealed-off bubble of Washington insiders. Also, in blasting the Roberts Court ruling on corporations and finance, Obama has made it clear that the island doesn't need Mr. and Mrs. Howell. Out-of-touch millionaires need not apply.)

What's wrong with efforts to pick a Supreme Court justice based on her ability to influence others? In one sense it certainly fits Obama's own leadership style, privileging moderation over rigid ideology and consensus building over results. But trying to anticipate all the ways in which Stevens's replacement might interact with future colleagues strikes me as the one thing that's even more difficult to predict than future judicial ideology. One can at least get a sense of the latter from reading judicial opinions and scholarship. Predicting how one individual might interact with eight others sounds like a lab experiment in social-identity theory.

So, for instance, just because Kagan hired conservative scholars when she was dean at Harvard Law School doesn't mean she'll have stunning intellectual influence over the Roberts Court's conservatives. And just because shortlister Diane Wood has been able to sway her brilliant conservative colleagues on the court of appeals doesn't mean she'll be able to do the same at the high court. While it's true that Stevens could sometimes influence the court's swing justice, Anthony Kennedy, it simply doesn't stand to reason that a Chicagoan, a veteran, or someone who likes bow ties can exert such influence in the future. …