Pragmatism is telling President Barack Obama to name a consensus builder, a moderate, to fulfill the soon to be vacant U.S. Supreme Court seat held by the retiring Justice John Paul Stevens. Stevens, a legend, and brilliant legal mind, has big shoes to fill.

            But on this one, Mr. Obama should ditch the pragmatism. He needs to go long on this one and change the game. The safe play is the consensus builder; the bold play is to nominate a sleeper pick, a clear progressive jurist, who is intellectually astute, young, and ready to pursue an agenda that restores the rule of law, protects privacy, and promotes diversity with a living, breathing constitution, not a document lost in the racist and unequal past of the United States.

            I am sorry to say that the candidates already being floated by the media are outstanding choices but are really not about the future except perhaps Elena Kagan. And this pick should be about the future, because by the time the new justice becomes a presence on the court, they might be in position to truly resolve some of this country’s dilemmas (same sex marriage for instance or the death penalty).

           So what they are controversial; now is the time for controversy and ideology. Was John Roberts a consensus choice? Was Samuel Alito a pragmatic choice? Maybe I am search of the next David Souter (I doubt it), but really, I am in search of the next William Brennan or someone to the left of Brennan to balance this thing out a little. Activists and commentators on the right swear the Court is unbalanced; yet a conservative has been Chief Justice for 40 years now. This is why we need a little bit of ideology. We need a judge we know is a progressive who is going vote progressive. Roe v. Wade is the law and even better, it should be the law. Miranda v. Arizona is the law, and it should be the law. Affirmative action is the law and efforts to overturn it are driven by racism. What nominee would ever say any of that?

           No one truthfully. But even still, let us dream a bit.

           So you ask, who are these sleeper picks out there that no one has heard of (this is a good thing, actually)? We will do this in two parts, men, and then women (in a future column). Here are three men that Mr. Obama should consider in order to shake things up at the Court.  We know Mr. Obama is a hopeless pragmatist but we are dropping the names anyway.

Goodwin Lui

Goodwin Liu was recently nominated to the U.S. Court of Appeals for the Ninth Circuit and the Republicans have thrown up roadblocks. This is because Mr. Lui is a rock star in the legal world and a progressive. He is in favor of abortion rights, diversity, and is big on the fact that Bush administration trashed the U.S. Constitution as they ramped up the war on terrorism. He has written about it so he is a known quantity and is trouble for the originalist crowd because he knows the original constitution was undemocratic. Yet, most importantly, Mr. Lui criticized both John Roberts and Samuel Alito for their views.  This makes him the perfect pick: why not have someone on the Court who is prepared to intellectually challenge the conservative block currently sitting on the Court?

Aderson Francois

Professor Aderson Francois is currently a law professor at the Howard University School of Law, and is like Gordon Lui, an intellectual rock star. Professor Francois is just the kind of person the GOP is afraid of because he has no extensive writing history that can be used against him. In fact, if he were the nominee, everyone would say: Who? But Professor Francois is as qualified as anyone. He worked in a corporate setting as well as the U.S. Commission on Civil Rights and is a champion of civil rights and a scholar on constitutional issues. In the future, when the Court finally extends marriage equality to all (same sex marriage), Francois will be the person who can deliver the opinion because he has written about the topic from a historical vantage point. He practices in federal courts right now as he is a clinician in the civil rights area.

Eric Halperin

No one has heard of Eric Halperin either and that is good. He works at the U.S. Department of Justice as Special Counsel on Fair Lending. He has extensive experience in litigation and was for a long time, the Director of the Center for Responsible Lending. This organization was about ordinary people which is where the Court has been lacking for decades now. Justice Earl Warren departed back in the 1970's and the conservatives took the place over. Halperin, like Ralph Nader, is consumer focused and is a top notch attorney with again - no extensive paper trail but it is safe to say, he is progressive on many of the key issues. He probably does not want to be a judge but it is likely he would make a great counter to the conservative judicial movement on the court. He is also, as required by your writer, a young man.