While Senate Majority Leader Harry Reid has been pushing for an outside the box choice, perhaps someone who was once governor or senator, someone with "real world experience."

But, since you can't sit on the bench after being convicted of a crime, there is one level of real world experience that the new justice will surely lack.

The new justice will never have been to prison.

Perhaps we should reconsider on this one.

The United States currently jails more people than any other country in the world. At the end of 2007, we held 2.3 million people behind bars. One out of every 100 Americans is in prison. Most of them are minorities.

With 5 percent of the world's population, the US houses 25 percent of the globe's prisoners.

Over 100,000 people took to the streets not to long ago-the Great Tea Bag Party of 2009-to protest a four percent tax hike for less than one percent of the population, but no one seems to be protesting a legal system that is frequently compared to that of Stalin and Hitler.

We're in the middle of a massive economic breakdown, yet all this incarceration doesn't come cheap. In 2002, what's been called the "prison-industrial complex" became the fastest-growing industry in the US. Today, we spent over 60 billion dollars a year locking people up.

As a result of outsourcing, seven percent of that money is being given to private corporations who have been hired because of their supposed jail-running efficiency-they're so efficient that, in a study done a few years back by the Department of Justice, there are 49 percent more staff assaults and 65 percent more prisoner assaults in these private facilities.

After 40 years of a catastrophic failure of a drug war and the downstream correlates of three-strikes and you're out the single largest group of people currently in jail are marijuana, alcohol, crack and heroin addicts.

7 out of 10 inmates are there for non-violent crimes.

Our constitution claims to prohibit "cruel and unusual punishment." Uh-huh, tell that the prisoners in California who were not long ago forced into "gladiator fights to the death" for the amusement of the guards. Tell that to all the prisoners who got busted for shoplifting and now have HIV thanks to their stay in a US jail.

It seems that in all the attention we've been paying to question surrounding the politics of a Supreme Court appointment, we've forgotten the point.

The Supreme Court is not just the highest legal body in the land, it's a symbol, perhaps our ultimate symbol, of freedom and justice and morality, of what it really means to be an American.

And right now, for one out of nine black men, being an American means being in jail.

So maybe we don't want to nominate a convict for the court, but it does seem time to take this discussion to a higher level, to concentrate on a few questions more basic than "can Obama get his candidate confirmed."

Like what do we really mean by freedom? For whom, by whom, at what cost? What is our purpose here? Is it retribution, or rehabilitation? How do we really define morality in a free society? And most importantly, especially for this appointment, what do we mean by justice.

Because the system we now have in place may be many things, but just is not among them.