Dahlia Lithwick: The Limits of Influence





[Dahlia Lithwick is a senior editor for Slate.]

The hunt for Justice John Paul Stevens' replacement has become singularly focused on personality type. In­­stead of searching for the most brilliant jurist in the country, we have all 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 picking someone who writes passionate dissents. Obama—who could announce his pick as soon as this week, and the heavy betting is on Solicitor General Elena Kagan—is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court. (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 election finance, Obama has made it clear that the island doesn't need Mr. and Mrs. Howell. Out-of-touch millionaires need not apply.)

So what's wrong with efforts to pick a Supreme Court justice based largely on his or 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' 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 past judicial opinions and scholarship. Predicting how one individual might interact with eight others sounds more like a lab experiment in social-identity theory.

So, for instance, just because Kagan hired several conservative scholars when she was dean at Harvard Law School doesn't mean she'll have some kind of stunning intellectual influence over the Roberts Court's conservatives. And just because shortlister Diane Wood has sometimes 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 combat veteran, or someone with a taste for bow ties can exert similar influence in the future. Strategies that made Justice Sonia Sotomayor highly effective at the 2nd Circuit court of appeals may not be having much effect on the Roberts Court. And tactics that make Merrick Garland so beloved on the D.C. Circuit Court of Appeals might not fly at the Supreme Court....

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