Since I don’t have access to President Obama’s "shortlist," I’ll rely on Intrade to tell me the most likely nominees for fill Justice David Souter’s seat on the Supreme Court.

Right now, five candidates break double-digit odds (links are to Wikipedia): 

[edit — if this AP article is correct, then Wardlaw’s not under consideration, but Janet Napolitano and Carlos Moreno are. I’ve thus added a dissent by Justice Moreno.]

Since he’s the one doing the choosing, let’s quote Obama on the Supreme Court:

[I]n the overwhelming number of Supreme Court decisions, [intellect is] good enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all going to agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart? What’s their broader vision of what America should be?

As all five are still with us, I assume the answer to the former is "oxygenated blood."

The latter, however, can be answered in part by exploring how these potential nominees previously ruled in those "five percent of the cases that really count."

Three are currently judges (Sotomayor, Wood and Wardlaw) and so give us examples — in the form of dissents — for how they decide controversial cases.

Why dissents? Because a dissent is one of the few times in which a judge, having seen what the majority (and thus precedential) result will be, is openly trying to change the direction of the law. The primary purpose of a dissent is to limit the impact of the majority opinion, to direct future courts, lawyers and policymakers to conclusions different from those reached by the majority. They’re the best glimpse into what judges are "really" thinking, because they show where the judge "really" wants the law to go.

I’ve picked out [four] cases in which there was insufficient precedent to guide the majority or dissent jurists to a clear conclusion, thereby requiring the judges draw on their "broader vision of what America should be" to decide.

Here’s Sotomayor, standing up for the First Amendment rights even of a bigoted police officer fired for anonymous hate speech:

Today the Court enters uncharted territory in our First Amendment jurisprudence. The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech — where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee’s own time; where the employee’s position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community. Precedent requires us to consider these factors as we apply the Pickering balancing test, and each counsels against granting summary judgment in favor of the police department employer. To be sure, I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

Pappas v. Giuliani, 290 F.3d 143, 154 (2d Cir. 2002).

Here’s Wood balancing the difficulty of, yet clear Congressional support for, permitting the victims of terrorism to pursue alleged enablers of terrorism through civil litigation:

This is a heart-breaking case. No parent can fail to empathize with Joyce and Stanley Boim, who lost their son to the evil of terrorism just as he was on the brink of all of life’s promise. Nothing can bring David Boim back, but the Boims have taken advantage of a statute that Congress passed that was designed to provide some degree of accountability for those who commit such awful acts. See 18 U.S.C. § 2333(a). In Boim v. Quranic Literacy Inst. & Holy Land Found., 291 F.3d 1000 (7th Cir. 2002) (‘Boim I’), this court decided that the set of possible defendants in such an action includes not only the direct actors (here, Amjad Hinawi and Khalil Tawfiq Al-Sharif) and the organization to which they belonged and that directed their actions (here, said to be Hamas), but also organizations that aid and abet the former two. When all is said and done, the en banc majority has reaffirmed the latter ruling, though it does so under a slightly different rubric. But, in our zeal to bring justice to bereaved parents, we must not lose sight of the need to prove liability on the facts that are presented to the court. Assumptions and generalizations are no substitute for proof. Particularly because, unfortunately, this probably will not be the last case brought by a victim of international terrorism, it is crucial that we be as clear as we can in fleshing out the statutory requirements and that we do not rush to judgment. Because I do not agree with the majority’s articulation and application of some of the governing legal standards, and I find too many central facts to be in dispute, I am still of the view that this case needs to be remanded for further proceedings.

Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 719 (7th Cir. 2008)(PDF here).

Here’s Wardlaw arguing the Federal Americans With Disabilities Act’s broad authorization of injunctive relief trumps circuit-to-circuit comity concerns and thus empowers a district court to enter a nationwide injunction against a discriminating company so long as that court’s relief is appropriate for the plaintiffs involved:

In light of the ‘considerable discretion’ a district court has ‘in fashioning suitable relief and defining the terms of an injunction,’ our precedent commands ‘correspondingly narrow’ appellate review. Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (internal quotation marks omitted). Unfortunately, the majority’s review is far from narrow. Instead, based on a tenuous apprehension of ‘substantial interference’ with the law of the Fifth Circuit, the majority vacates the district court’s injunction without ever explaining how that remedial order was an abuse of discretion. Because the district court’s injunction did not exceed the specific harm alleged, it cannot have been overbroad. See id.; see also Bresgal, 843 F.2d at 1170-71 (‘[A]n injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit–even if it is not a class action–if such breadth is necessary to give prevailing parties the relief to which they are entitled.’ (emphasis omitted)). Moreover, because the relevant comity cases actually support the scope of the district court’s injunction, it is clear that the district court did not rely on erroneous legal principles. Confronting AMC’s nationwide violations of § 4.33.3, and keeping in mind the ADA’s stated purpose ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,’ 42 U.S.C. § 12101(b)(1), the district court was well within its discretion in granting nationwide relief. Thus, I dissent."

United States v. AMC Entm’t, Inc., 549 F.3d 760, 781 (9th Cir. 2008)(PDF here).

[As described above, Wardlaw is apparently not under consideration, but another Judge, Carlos Moreno, is.] Finally, here’s Moreno, arguing due process protections require, even in the absence of clear prejudice, reversing several criminal convictions due to the trial court’s failure to disqualify the local prosecutor’s office, where one of the defendant’s parents worked:

The pattern of conduct by the prosecutor in this case established that Vasquez was treated differently and less favorably than another defendant in his position would have been who did not have Vasquez’s family connection to the LACDA. This disparate treatment of Vasquez violated the duty imposed on prosecutorial offices to exercise their discretion in an impartial and evenhanded manner ‘born of objective and impartial consideration of each individual case.’ (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 267 [137 Cal. Rptr. 476, 561 P.2d 1164].) As we stated in Greer, ‘[i]ndividual instances of unfairness, although they may not separately achieve constitutional dimension, might well cumulate and render the entire proceeding constitutionally invalid.’ (Id. at p. 265.) That point was reached by the time of the second motion to recuse because by then there was demonstrable evidence that the prosecutor’s discretionary decisions were being driven by the LACDA’s concern that it not be perceived as showing any favoritism to Vasquez due to his family connection to the office. Because ‘we do not know and cannot now ascertain what would have happened if the prosecuting attorney had been free to exercise the fair discretion which he owed to all persons charged with crime in his court’ (Ganger v. Peyton (4th Cir. 1967) 379 F.2d 709, 714), I am unable to conclude that the constitutional violation was harmless beyond a reasonable doubt. (Ibid., citing Chapman v. California (1967) 386 U.S. 18 [17 L. Ed. 2d 705, 87 S. Ct. 824].) Accordingly, I would reverse defendants’ convictions."

People v. Vasquez, 39 Cal. 4th 47, 72–73, 137 P.3d 199, 215–16, 45 Cal. Rptr. 3d 372, 391 (2006).

The cases are long and complicated, but worth reading because they touch upon basic — yet unresolved — questions of American law and governance, from the protections of anonymous (and hate) speech, to the intersection of civil recovery and national security, to the reach of the powers of a single district court in our federal system. The decisions reached by the majorities in each case have ample support in precedent and political theory, yet were not persuasive to judges Sotomayor, Wood, Wardlaw and Moreno.

It’s worth seeing why not, and what they believed should have been done instead.