Okay, not really, given that Earl Warren is dead.  But play along with me for a moment.

Earlier today I predicted that Michigan Governor Jennifer Granholm would be Obama’s choice to replace David Souter. That was a gut feeling, based largely on Obama’s capacity for out-of-the-box thinking.  But thanks to a post by Reihan Salam at The American Scene, my brain now can articulate what my gut already told me.

Despite the fact he is a conservative, Reihan argues that Obama should choose the strongest possible candidate:

Why does choosing the strongest nominee matter? My sense is that it is about networks. If John Paul Stevens retired, for example, the Supreme Court would move to the right and not the left, even if Obama named a similarly committed liberal, because Stevens has a lot of social capital — he can bring Kennedy on side, he can unite the liberals, etc. You need someone who, through force of personality and wattage, can move the Court in your direction.

I think Reihan right:  the left needs someone who, by the force of his or her personality, can move the court (and when necessary, challenge the right).  Stevens is too old for this role, Ginsburg is too frail, and Breyer seems not suited to it.

What the left really needs is not another John Paul Stevens or David Souter, but another Earl Warren.  Warren, like Souter, was appointed by a Republican President, only to dismay him (and his supporters) as a result of his strongly progressive jurisprudence.  Unlike Souter, however, Warren was a leader, an organizer, a smart politician who often managed to convince even those who disagreed with him to support key rulings.

Of course, the very suggestion of nominating an Earl Warren-style figure might cause Glenn Beck’s head to explode.  Warren remains a bete noire to the right, the symbol of everything they hate about liberal Supreme Court nominees.  The words “Warren Court” have become an epithet in conservative circles, synonymous with “judicial activism.”

So be it.  The hard right is going to go nuts no matter who Obama picks, so why not pick someone who knows more than just procedure?  Why not choose someone who might help end the court’s 4-1-4 gridlock?

My point isn’t that Obama should pick someone as progressive as Warren, but rather that he should pick someone as savvy.  What made Warren so effective was not his judicial philosophy but his ability to get others to agree to his views.  It was Warren, after all, who recognized that Brown v. Board of Education needed to be a unanimous vote.  He spent weeks working on his fellow justices, crafting his opinion to ensure their full support.  The end result was not a perfect decision, but it was exceptionally astute.  The unanimity of the Court closed the door to any further effort by segregationists to reverse the decision.

Warren was not the most brilliant of legal scholars, but he knew how to play the game.  The Court is, after all, a political institution, no matter what the civics textbooks may say.  In fact it is far more political today than it was at the time of Warren’s confirmation.

I think Obama gets that.  He says he wants to end the judicial wars.  How better to do that than to go outside the usual candidate pool (which in recent years has been exclusively appeals court judges)?

In that sense, Granholm would be a great choice — like Warren, she’s been a prosecutor, state attorney general, and governor, so she understands how the system works.  She’s been in the political trenches.   Given the often epic budget battles in Michigan, she knows what to do when the other side fights dirty.  And coming from Michigan, she understands the many challenges facing average Americans.

A Granholm nomination would not be without risk.  Like any politician (or judge, for that matter), she will face a greuling confirmation process, and I’m sure that Republicans will recycle past attacks, including charges of favortism, as well as her fraught political relationship with former Detroit Mayor (and convicted felon) Kwame Kilpatrick.

But that doesn’t mean Obama shouldn’t try.   It certainly would force both sides to revisit the debate over who should be named to the Court.

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