A Case for Elizabeth Warren on the Supreme Court

Elizabeth Warren, Harvard Law School professor and passionate consumer advocate, hasn’t been on many short lists for the Supreme Court. But administration sources say that she is very much in the hunt. Warren would satisfy President Obama’s criteria for the job, and she would likely prove to be a historic choice with a long-lasting impact on the country.

Obama and Warren met in Cambridge, Mass., in 2003, when Obama was running for the Senate, and bonded over a mutual interest in the abuses of banks. “You had me at ‘predatory lending,’ ” Warren later told him. While the president hasn’t accepted all of her ideas, he instructed Larry Summers to talk with her when preparing the administration’s financial regulatory reform package.

Warren’s ++writings++[[http://www.amazon.com/exec/obidos/ASIN/0465090907/?tag=nwswk-20]], frequent TV appearances explaining complex banking matters in clear language, and role heading a congressional panel evaluating the Troubled Asset Relief Program (TARP) bailouts all point her toward a different path than a seat on the high court would. As the originator of a new Consumer Financial Protection Agency that is the centerpiece of the financial reform about to be enacted by Congress, Warren is expected to be the first head of that agency. Many consumer advocates believe it would be a shame to take her off that mission (and off TV) for the monkish precincts of the Supreme Court.

But heading a consumer agency would be for two years or so; the Supreme Court is for life, and Warren has indicated privately that she would leap at the chance to serve on it. Obama is saying privately that his main criterion for choosing a new justice is that he or she begin to redress the high court’s pronounced tilt toward the powerful, embodied in the January Citizens United decision, which found that corporations have the same rights as individuals when it comes to political speech. The president also wants someone with real-world experience, not a career on the bench. (In recent years, all of the sitting justices have been judges beforehand.) Finally, he’s looking for a justice who can go toe-to-toe with Chief Justice John Roberts and “get to five” by convincing Anthony Kennedy to come over to the liberal side more often. Warren would do well on all accounts.

Warren’s expertise at Harvard is bankruptcy, contract law, and commercial law—all of which are major parts of the Supreme Court’s case load. On the legal complexities of such cases, she would immediately be one of the best-informed justices. She would hardly be a shrinking violet when it came to advocating for the interests of the middle class and the poor against the wealthy interests that have time and again won favor with the Roberts Court. As the daughter of an Oklahoma janitor, her personal story is inspiring and nontraditional. She is a Protestant (the departing John Paul Stevens is the only Protestant on the court; six justices are Catholics and two are Jewish), and she did not go to a fancy law school like every other justice (she was editor of the Rutgers Law Review). As a strong voice standing up to Roberts and Antonin Scalia on behalf of the liberal wing of the court, she would have a better chance than a cautious justice of bringing Kennedy around to her side.

Finally, there is something larger than life about Elizabeth Warren, and not just because she was a frequent guest on Dr. Phil. In a time of bland jurists, the president would do well to name someone Americans will still be citing and arguing about a half century from now. She’s not related to Earl Warren, but could, over time, forge her own Warren Court.

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