Could Freud Help the Supreme Court?

It has now been two weeks since Justice John Paul Stevens announced his retirement, and from last year’s pattern and what White House aides are saying now, numerous interviews already have been conducted. About ten people are in the mix, with three inside favorites: U.S. Solicitor General Elena Kagan and U.S. Appeals Court Judges Diane Wood, of Chicago, and Merrick Garland, of Washington, D.C. Last year, within about two weeks of Justice David Souter’s May 1 retirement announcement, then-Judge Sonia Sotomayor had been interviewed by a half dozen top administration lawyers. President Obama interviewed her on May 21, offered her the job on May 25, and made his choice public on May 26. Read her dramatic recounting of his call to her here.

President Obama is weighing what he wants in a justice this time around and how much of a fight he can expect with Republicans – who’ve already thrown up plenty of hurdles to his lower court nominees. (My early take on his dilemma is here.) Last week I was on a panel at New York University that explored some of Obama’s choices as we primarily considered how a justice’s life experiences influence his or her decisions.

 The most senior member of our group, NYU Professor Norman Dorsen, who was a clerk to Justice John Marshall Harlan (1955-1971), talked up the value of a multitude of backgrounds on the bench. Harlan served with former California governor Earl Warren, former Attorney General Tom Clark, and former Securities and Exchange Commission member William O. Douglas. Harlan had been a prosecutor, long-time member of a Wall Street firm and, briefly, a U.S. appeals court judge. All nine of our current justices, of course, were U.S. appeals court judges (and not briefly) before being elevated to the Supreme Court.

George Washington Law Professor Jeffrey Rosen offered the most provocative argument of the day, saying that as much as life experience matters for a justice, it is “ultimately less important than the relationship with Mommy and Daddy.” He used Stevens as an example. He said that he was sure the justice was shaped, for example, by his World War II service. But he said he found more determinative to Stevens’s rise and actions on the bench that his mother constantly spurred his ambition by saying he’d never be as good as his Chicago businessman father. So, Rosen quipped, with a nod to Sigmund Freud, he hoped Obama’s vetters were not just reading candidates’ rulings but looking at relationships with Mom and Dad. Watch the discussion moderated by Barry Friedman, whose book on the Court, The Will of the People, came out last fall, here. And look for a nomination around the second week of May.