The point of this article is in the title, pretty much :) what we should care about is what the next Supreme Court judge thinks like, not what they look like.

I have a bit of humor about that at the end. :)

That a divorce of ideology from race or gender is possible is of course demonstrated by Clarence Thomas in terms of Courts and Blacks.

That a divorce of ideology from race and gender is possible was demonstrated as well by Margaret Thatcher, in terms of Executives and Females, Executives which in the American case makes judicial appointments, the topic of the essay, pretty much. :)

I wrote an earlier piece after Mr. Obama's election, pointing out that I don't care if he is black especially, one way or the other; what I care about is what he wants to do.

I personally remain undecided about Mr. Obama; except for one thing, at the end. :)

Mr. Obama is clearly a master of power. And he was a law professor.

To me, there is something Protean about him; perhaps like all successful politicians, he is somewhat formless, in the sense of Sun Tzu.

Now, as to the main point of this article, what the next justice thinks like, not looks like, I know a lot of people do not like Clarence Thomas.

But Thomas does have an independent legal mind, just one that is not currently popular; although his opnion would have been popular seventy years ago, and after an interlude of unpopularity it would have been popular one hundred and fifty years ago too, so these things cycle, and in any event, Thomas actually does have a mind that is independent of his race, independent of his being black, and yes, on some things, independent of Antonin Scalia.

Thomas has, for example, done very interesting work on how the Slaughterhouse Cases (1873) got U.S. Fourteenth Amendment Law off track by eviscerating the Privileges and Immunities Clause of said amendment.

More on that later. :)

As to Margaret Thatcher, and the divorce of gender rather than race from ideology, she demonstrated that a woman in a national Executive Position could be every bit as much of a hard case as a guy.

Like everything else in life, that had good and bad to it, but by the end, everyone knew that the only thing that mattered about Margaret Thatcher being a "bitch," was that she was a tough one.

The point is, when considering the next Supreme Court justice, we can get over the idea that the race and gender of the next appointee is particularly important; we have already been there and done that.

What is important is the thought process of the judges we are putting on the bench. :) :)

Following the Socratic method, if I were Barack Obama, I would probe the mind of Potential Candidates to the Supreme Court by asking them some reasonably simple questions, with a warning that there will be ever more brutal follow-on questions to test how their mind works: think Barack Obama and The Paper Chase.

Barack Obama was a law professor.

Can you imagine that, Barack Obama as John Houseman of the Paper Chase?

I have the mental picture now, except John Houseman is in the Oval Office, and he is significantly younger looking, and somewhat darker complected: but he is still Harvard Law, like Barack.

Except here, we have the eternally youngish looking black guy mentally torturing the older white guys, like Houseman in Torts, except Houseman is a lot younger looking and somewhat darker complected, and except that Houseman is now fifty thousand times worse than any normal law professor, because this law professor actually has real power.

See, that is the catch.

If Barack blows a question with a Candidate for Souter's replacement, he would look, and more importantly feel, really, really bad.

He would look really, really bad, because Barack was a law professor; he also, by definition, has a huge ego, which is why he would feel that much the worse for missing anything.

He definitionally has a huge ego because he believes that as a law professor that he, by definition, if given sufficient time, could find a correct answer to any legal question, so he believes that in some sense he can never be wrong.

So to preserve his ego, Barack has to push the Candidate to the edge, albeit a mental one.

Ah, yes, I see it now; let the Ultimate Legal Mind Game begin.

Maybe some Candidates head will explode, like in Scanners.

Visualize now.

Barack is sitting in a perfect blue power suit and red tie behind the Big Desk in the Oval Office; like the Devil in a Business Suit.

His cold, blank expression reminds you of John Houseman, on a bad, a very bad, day.

He works quietly at his desk,  making sure he is properly briefed for the President's personal Oral Legal Examination of the Candidates to replace Justice Souter.

The Candidates are brought in through security checkpoint after security checkpoint, the disruption of all their effects at each checkpoint further demonstating who is the Legal Master, and who is the Legal Grasshopper.

The Candidates increasingly resemble first year law students, their briefcases looking subtly ever more askew.

Barack told the Secret Service to mess with their minds at the checkpoints, to get an upper hand on the Candidates from the get-go.

It is working.

The Candidates are now Seated in Line outside the Oval Office of the Most Powerful Law Professor in History, gradually growing ever more nervous about what their encounter with the Most Powerful Law Professor in History will entail.

"Wouldn't want to make a mistake; the Obama people said to think abou the interview as kind of like a test. That could be really hard," the Candidates are now all thinking.

"He would catch any mistake for sure, Editor Harvard Law Review, University of Chicago Law Professor and all." The Candidates start to tremble inside.

Meanwhile, Barack has been preparing all night to Keep His Legal Grasshoppers in Line thinking,

" I am the Most Powerful Law Professor in History: I cannot be wrong. I cannot make a mistake. By definition, as a Law Professor, I am never wrong. I can always reason my way to an answer, if given sufficient time."

The first Candidate is told by the Secretary that he can come in now.

The Professor is now very close to being ready.

He is John Houseman of the Paper Chase, on a very, very bad day. He is a Law Professor; he cannot be wrong, by definition, if given enough time.

As the Candidate comes in, Barack does not look up from his Big Desk, visibly reading Commentaries on the Common Law (1765) by Blackstone, the Big Desk strewn with legal note pads and massive texts: a law professors desk.

He merely and only nods, doesn't even look up, and barely motions to a Lonely Chair, cold, distant, saying

"Hello. Why don't you have a seat?"

A Sole, Lonely legal green leather Chair of Legal Doubt and Pain faces the Window of the Oval Office, and in between is the Big Desk, and Barack.

There is a sole chair; it beckons the Candidate in the Middle of an Emptied Oval Office.

Barack had ordered that the Oval Office be emptied, except for some of the curtains, but there is only one window you can see out of, and Barack is in front of it, the dark purple curtains only serving to further block the Candidate's view of the outside world.

The lights seem to have lowered somehow, and the shadows from what little sunlight enters the room emanate from Barack; there seems so little life, so little hope, no way out, which is Barack's point for his Legal Pacing, the hardest Legal final in the history of mankind.

The Oval Office is basically empty, except for the Big Desk and it's chair, and the Chair of Legal Doubt and Pain.

There is Nothing but the Professor's Desk and the Chair of Legal Doubt and Pain, the Big Desk partially blocking the view of the Window to the Outside World for the Candidate for the Oral Legal Examination by the Most Powerful Law Professor in History, a man who believes h can never be wrong, by definition, if he had enough time.

" I will be done with my research in just one second. Just one teensy, weensy second."

The Candidate now totally feels like it is First Year Law, and humbly walks to the Chair of Legal Doubt and Pain. The only door out, the Only Way Out, is pulled shut from the outside by mysterious forces; the Candidate is now alone with most powerful man on earth.

Slamming the Commentaries (1765) shut, the Most Powerful Law Professor in History, a man who, by definition, believes he can never be wrong, if he was immortal, jumps up and says, like Urkel smiling, but really like John Houseman on a really, really bad day,

"All done!"

Barrack Drops the Mask of Power as he now walks around from behind the Big Desk in Front of the Window to the Oval Office, the Candidate now sitting Emotionally Naked in the Chair of Legal Doubt and Pain before the most powerful man in history, a man who was also a law professor, and a man who more importantly is now starting to act like one, a total legal and demonic egomaniac, a man who thinks that by definition, he can never be wrong, if given enough time, but in which his key methodological error is that we are all mortal, even law professors.

The candidate thinks, screaming mentally inside, 

"Oh no, I am a first year law student, and this is the Houseman Guy?! Oh, no, no!! I wish I hadn't done so much acid in college; I hate the flashback stuff, especially flashbacks to law school and the Houseman guy, oh no!"

Barack coolly says,

"This will not be over soon, unless you instantly fail the Exam, and you will proabably not enjoy all of it, or even much of it."

Barrack now paces the room relentlessly, his hands behind his back, his posture perfectly erect, his mind totally honed to the task of putting the Candidates through the Hardest Legal Pacing he has ever conceived of, a Legal Pacing he has spent years devising.

They had always made him really tone it down on the First Year Pukes at Chicago, so he couldn't really do the Houseman thing the way he really, really wanted too: the country had obviously gone soft.

But now this, this was his chance: his chance for the Ultimate Legal Pacing, the most brutal Oral Legal Examination in History.

So the Law Professor with Ultimate Power, who, by definition, knows he can never be wrong,  with enough time, says, coldly, so coldly,

"Think of yourself as a first year law student, and I am John Houseman of the Paper Chase."

"Oh, God, no, no!"

"I see it as my duty to determine by oral legal examination if you have the mental fortitude to be a Supreme Court Justice of the United States, and to do so, I have to put you  in the place of Legal Doubt and Pain. Hence, the Chair."

He points at the Chair, and the Candidate, off-handedly.

"Yes, Professor. I mean, Mr. President."

Barack wheels around, blocking the sun from the Only Visible Window, thereby suddenly towering over the Emotionally Naked Candidate in the Chair of Legal Doubt and Pain.  

So coldly, so coldly, inhuman, the most Powerful Law Professor in the History of Mankind, who can never, by definition, be wrong,  says, so distant, so cold, staring right through you,

"It is Nothing Personal. I have trained my entire life for this moment, and I will not try to make you do anything that I wouldn't do."

Smiling. Coldly. A smiling Cobra.

"But of course, I was  law professor at truly the world's best universities, which by definition are savage snakepits, and yet I had to maintain total intellectual credibility and even dominance. By definition, I could never be wrong."

Smiling. Coldly. Like a Mean Urkel. Like John Houseman on a bad day on the Paper Chase. Like a cobra, waiting to strike at any legal error with the legal venom honed at the greatest snakepits in history at Harvard and Chicago.

The Candidate now looks very, very uncomfortable, unconsciously looking towards the door, as Barack suddenly changes gears and moves rapidly to the Door of the Oval Office, thereby blocking the Only Exit to Mental Shelter from the Chair of Legal Doubt and Pain and says,

"Would you like to continue?"

 He rushes over to the Big Desk, and with the somewhat manic enthusiasm of the professoriate says,

"Or perhaps you would like a  cookie? A glass of water? Perhaps milk would comfort you now?"

" I am not making you nervous, am I?"

Smiling, like a Mean Urkel, like Houseman on a bad day. Like a cobra, entrancing.

The Candidate barely refrains from screaming, from running away, from having his head explode at the legal ordeal he knows is about to follow, an ordeal honed at Harvard and Chicago.

"Oh, of course not, Professor. I mean, no thank you Professor, I mean  sir, Sir." Almost spitting, babbling it out now, "I mean, Mr. President. No thank you, Mr. President. And no, no, of course, of course I am not uncomfortable."

With that Big Urkel Smile, thinking inwardly,

"Good, he is starting to come unglued, and right on schedule," he says outwardly

"Good. As a Law Professor, I try hard not to make people feel intellectually inadequate. That can be hard sometimes, given the nature of the job."

Barack now totally relaxes his posture, walks calmly behind the Big Desk, and sits down with the precise grace of a trained cobra.

He now consciously, openly imitates Houseman. He owns the Candidate. The Candidate has been entranced.

He puts his suddenly shoeless black socked and crossed feet on the Big Desk,  his hands now firmly behind his head, and reclines back into the Big Chair of the Big Desk, as he closes his eyes and breathes deeply, thereby fully assuming the Posture of the Most Powerful Law Professor in History and says,

"I am going to give you two questions at first. Your performance on these two questions will shape the remainder of the Examination, including, of course, its possible immediate termination and your loss of consideration as a Candidate. You may of course take notes to structure your responses. I first will read you the questions verbally. After five minutes, in which you may prepare notes for your verbal response, we will commence to the Oral Legal Examination. I expect that each of your responses will be thorough."

" Yes Professor. I mean, yes sir, Mr. President."

Barack smiles inwardly, knowing he has won without firing a single question or shot. The Candidate, he knows, is done; he can pushed to the point of a nervous breakdown.

Thinking,"I wonder if I could make someone's head explode, like in Scanners; let's give it a shot," the Most Powerful Law Professor in History says out loud in the inhumanly cold Houseman-like monotone of a man who knows that by definition he cannot be wrong, if given enough time, if he were immortal,

"In your hypothetical role as a potential Supreme Court Justice, what do you think your job is in terms of making policy versus strictly ruling on cases, what does that mean for the role of elites in society versus the role of democracy, and how does your answer settle whether we are in fact a Democracy or a Republic? Federalist 78, 10 and 51 must, at a minimum, of course, be a part of a Correct Response, and no lies here as to elites and their existence, as well as the rights and duties of elites."

"There will of course potentially be relentless follow-on questions as to many sorts of hypotheticals derived from my Oral Legal Examination of your Legal Mind as to your fitness for Justice of the Supreme Court."

" But then you, of course, knew that this would be the Ultimate Legal Interrogation Slash Oral Legal Exam in the History of Mankind, and I am sure you are well prepared."

"Yes Professor. I mean Mr. President."

"Excellent. You are writing the relevant material all down, corrrect?" 

"Yes Professor. I mean Mr. President."

He now smiles like Urkle again, but with that weird Houseman part you can now really see, the one you know is lurking on the finest point of law, waiting to crush you without mercy, a legal cobra, a Harvard and Chicago trained warrior-lawyer.

Sneering now like a mean Urkel but with the mind of Houseman on a bad day, the Most Powerful Law Professor in the History of Mankind says,"Question Two."

"In your hypothetical role as a Supreme Court Justice, do you worry that the Original Intent/Strict Construction jurisprudence of Federalist 78, and later Roger B. Taney, for instance, was too static, and/or do you worry that the implicit Living Constitution approach of John Marshall in McCollough vs Maryland and other obvious Marshallian cases has, like Harlan warned almost two centuries later, allowed judges to go tiptoeing through the Constitution to make laws like they want, thereby substituting the opinion of the legal elite into the place of laws made by the electorally reflected opinion of the people of the Several States, as one could argue was the case in Roe, and as you could argue was done in its logical descendant as a substantive due process case, Bush vs Gore, and/or do you balance the two core jurisprudential approaches, and if so, how? Also, please discuss in terms of your interpretation of the fourteenth amendment as much as possible, which of course also implies your views on the Tenth Amendment and Federalism in general, and your theory of the nature of the Constitution, as a Union and/or Compact, as well. You must also address the matter in terms of Clarence Thomas' work on the Privileges and Immunities Clause in the Slaughterhouse Cases."

Now walking back to the Door of the Oval Office that takes you away from the Place of Legal Doubt and Pain, the Most Powerful Law Professor in History says, coldly, so coldly, hypnotic, like a cobra,

"Take your time, prepare a good oral/verbal response, and expect, of course, vigorous follow-on questions. I expect, of course, as well, that the relevant case histories and scholars will be cited. I will be back in five mintutes. I need to have a smoke, and no, you cannot join me."

To be continued...