Letters to President-elect Obama: Kenji Yoshino

Dear President Obama,

I first wish to express my congratulations on your epochal victory. You are a sorely needed agent of hope and change in our national politics.

As you know, there are few places a president can make more enduring change than in his life-tenured appointments to the United States Supreme Court. The stakes will be unusually high during your administration. The justices most likely to retire are all progressives (Justice Ruth Bader Ginsburg, Justice David Souter, and Justice John Paul Stevens). The justices least likely to retire are all conservatives (Justice Samuel Alito, Chief Justice John Roberts, and Justice Clarence Thomas). If your opponent had won, progressives would have lost the court for the rest of your lifetime. Happily, you can now take us down a better path.

Speaking in July 2007 about your selection criteria for judges, you said, "We need somebody who's got the heart--the empathy--to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

That was a bold statement, not least because you must have known the firestorm it would provoke. Your opponent stated that you wanted judges who would legislate from the bench rather than interpreting the Constitution. Conservative constitutional law scholar Steven Calabresi opined in The Wall Street Journal that "we should not let Mr. Obama replace justice with empathy in our nation's courtrooms."

I urge you to refute these false dichotomies strongly and publicly. The late Republican administration too often saw empathy as incompatible with justice, rather than necessary to it. If proponents of torture had any empathy for the tortured, the terrible injustice of state-sanctioned torture could not have occurred.

With the possible exception of the Founding Fathers who assumed the office, no president has begun his term with your deep understanding of the Constitution. I also believe few presidents have possessed your capacity to imagine your way into the lives of the dispossessed in this country. I ask that you nominate individuals to the high court who share those qualities of mind and heart--individuals like Judge Sonia Sotomayor of the second circuit court of appeals, and Dean Harold Hongju Koh of Yale Law School.

President Obama, you have touched the top of our society with one hand and the bottom of it with the other. In the extraordinary reach of your ethical imagination lies the hope for justice in our country.

Sincerely,

Kenji YoshinoProfessor at New York University Schoolof Law and the author of Covering: The Hidden Assault on Our Civil Rights

More Letters to the President-elect:Tammy Baldwin, Democratic member of Congress from Wisconsin

Daniel Tammet, author of Born on a Blue Day

Evan Wolfson, Executive director of Freedom to Marry and author of Why Marriage Matters: America, Equality, and Gay People's Right to Marry

Joe Solmonese, President of the Human Rights Campaign

Melissa Etheridge, singer-songwriter

Michelangelo Signorile, radio host and author of Queer in America

Tammy Bruce, radio talk-show host and author of The New American Revolution

Kenji Yoshino, professor at New York University School of Law and the author of Covering: The Hidden Assault on Our Civil Rights

Vestal McIntyre, author of You Are Not the One and the forthcoming Lake Overturn

Jarrett Lucas, codirector of the 2008 Soulface Q Equality Ride