A poliitician would be an excellent replacement for Souter.

Gordon Silverstein has a terrific column explaining why President Obama should appoint a politician to the Supreme Court vacancy created by Justice Souter’s retirement. I think he’s spot on in understanding why, as Obama explained, it’s important that the future Justice “understands that justice ‘is also about how our laws affect the daily realities of people’s lives.’” Silverstein explains that many of the Court’s cases involve the Constitution’s impact on political and legislative functions, that none of the current justices has any legislative experience, and that it would make sense to have someone on the Court who really understands what the real-world consequences of its decisions:

Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century. 

I agree too with Silverstein that most law professors would not identify these as the Court’s needs. But there is too much abstraction on the Court these days — too much concern with doctrinal purity and not enough with the practical consequences of that doctrine. Take campaign finance for example. Many opponents of campaign finance regulation ground their stance in the belief that the right to free speech forbids restrictions on the right to give money to political campaigns. They equate money and speech. But if  the ways unregulated spending affects political speech is  in fact to restrict the access of multiple viewpoints (by, fo example, crowding out of what in essence is a limited range of communication the interests of less well funded voices), then the equation of money with speech makes no sense — if  it limits the voices heard, unregulated campaign finance limits free speech. A politician will certainly have a better sense of the reality of the situation than any sitting member of the Court.

Like most legal questions, we cannot definitely answer this question without considering its practical effects. I hope, therefore, that Obama strays from the style we’ve seen for too long: appellate judges and lawyers with strong academic support. A politician would be a great alternative.