Who Should be the Next Supreme Court Justice?

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Supreme Court Justice David H. Souter has been a great champion of separation of church and state. His replacement should be as well.

Much to the dismay of the far right, Souter was never a conservative ideologue. On issues of church-state separation and individual freedom, he angered the Religious Right by refusing to endorse its theocratic vision. In some cases, he provided the pivotal vote that prevented erosion of the church-state wall.

Souter embodies the qualities that make an effective justice – qualities President Barack Obama would do well to look for when considering Souter’s replacement. Like Souter, the next high court justice must have a keen intellect and can’t be afraid to use it. Souter was rarely content to simply endorse another justice’s opinion. He often wrote separately to explain his own thinking.

His replacement should be equally willing to explain his or her legal reasoning. The Supreme Court remains closely divided over issues of church and state. The new justice should be an unabashed supporter of that principle, someone who doesn’t hesitate to spar with Justices Antonin Scalia and Clarence Thomas and soundly debunk their ill-informed attacks on the church-state wall.

Our next justice should also understand and appreciate the twin guarantee of freedom embodied in the religion clauses of the First Amendment. He or she should strongly oppose government support for or intervention in religion yet vote to protect individual religious freedom rights.

Obama must do his best to find a justice who honors, respects and reflects the values the New Hampshire jurist championed. It’s imperative that the church-state views of potential nominees be ascertained well in advance. Any who fail to support that principle should be rejected.

Some might argue that this is a “litmus test.” If so, it’s a reasonable one. Isn’t it to be expected that we would require a nominee for the highest court in the land to unashamedly and forthrightly express support for basic constitutional principles? Most Americans would look askance at a nominee who blithely dismissed freedom of speech or the right to a fair trial. They should do the same with a potential justice who disregards the separation of church and state.

Americans United is not interested in naming names at this point. The American legal system is huge. We are confident that within this system, there are many men and women who embody the values espoused by Justice Souter. Obama should make sure he finds one.