In replacing Souter, Obama should look beyond courthouse

Like Governor Jennifer Granholm of Michigan, who is also being mentioned as a possible first nominee of President Obama for the high court, Patrick is a successful politician whose legal career doesn't include any time as a judge. Patrick was a civil rights attorney, corporate lawyer, and assistant attorney general in the Clinton Justice Department. Granholm was a legal clerk, state attorney general, and, for real-world experience, a contestant on "The Dating Game," before winning the governorship.

By recent standards, that leaves both Granholm and Patrick a little short in the resume for a Supreme Court nomination. All the sitting justices including Souter had judicial careers before joining the high court.

But by historical standards, Patrick and Granholm are every bit as ready as any career judge, a fact that Obama, who mentioned "empathy" as one of the key qualities he's seeking in a justice, seems to realize.

A brilliant legal scholar, brimming with theories of constitutional interpretation, hasn't always been the model justice.

Nonetheless, speculation has focused mainly on the notion that Obama is looking for a woman or a Hispanic, and those leading candidates are almost all federal appeals court judges. Another, Solicitor General Elena Kagan, recently dean of Harvard Law School, is a career academic.

Still, the speculation could well be wrong, because many of these names were floated in anticipation that the court's only female justice, the ailing Justice Ruth Bader Ginsburg, would retire, not Souter. In addition, Obama himself is quite familiar with the legal landscape and won't be relying on any advisers - or conventional wisdom - to guide his choice.

And the need for the pragmatism represented by someone who has campaigned for office, contended with an unruly Legislature, and conducted regular news conferences is especially evident on this court.

Arguably, the current court has become politically polarized because it lacks politicians. The dueling legal philosophies of conservatives Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito on one side and liberals Ginsburg, Stephen Breyer, and John Paul Stevens on the other are so pitched and prominent because the justices are acting on principle: They're faithful to doctrines and theories - to a fault. (Souter and Anthony Kennedy are reigning moderates.)

Patrick or Granholm, both Democrats, might be expected to vote with the liberals much of the time, though some past justices have defied expectations. But they'd also be more likely to break with doctrine when confronted with a compelling set of facts and to build bridges among the judicial factions when discussing cases in conference.

Both are known for their likable personalities, and Patrick, in particular, rose to high office in Massachusetts largely on the strength of being open-minded and a good listener. He's also personally close to Obama, with whom he shares a political strategist and message.

There are also some downsides to picking politicians - including Granholm and Patrick. There's the matter of vetting fund-raising records for possible conflicts or scandals. Patrick's pre-gubernatorial career includes lots of highly compensated work for corporations that could easily have an interest in Supreme Court decisions. And both Granholm and Patrick are confronting state budget crises amid diminishing popularity. They could privately be hoping for a court appointment as a way out of a tough situation.

But many justices rose to the court after political careers, in some cases checkered careers. Court historians have often believed that the justices with political backgrounds helped steer the court through some of the most dramatic and divisive issues.

Franklin D. Roosevelt, who appointed eight justices, pointedly chose a mix of electoral politicians (Hugo Black, Jimmy Byrnes, Frank Murphy), New Deal administrators (Stanley Reed, Robert Jackson, William O. Douglas), and legal minds (Felix Frankfurter, Wiley Rutledge). Only Rutledge was an appeals court judge before joining the high court.

Roosevelt's immediate successors, Harry Truman and Dwight Eisenhower, chose justices with a similar mix of backgrounds. Only in the past few decades have choices been skewed toward career jurists.

Now, conventional wisdom holds that the current court, which includes seven white males, one black man, and one white woman, lacks diversity. But adding more career jurists who happen to be women and minorities doesn't make the court representative of anything more than a law faculty.

Obama must find a way to address all forms of diversity.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond. He can be reached at canellos@globe.com